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Congress, 1 
Session. j 



SENATE. 



Report 
No. 215. 



CONSTITUTIONALITY OF THE TREATY BETWEEN THE 
UNITED STATES AND FRANCE. 



September 22, 1919. — Ordered to be printed. 



[Mr. Walsh of Montana, from the Subcommittee of the Committee 
on the Judiciary, submitted the following 



REPORT. 

ir- 7 (^-, ^ 1 I [Pursuant to S. Res. 154.] 

The Subcommittee of the Committee on the Judiciary, which was 

I directed by a Senate resolution of August 7, 1919, to advise the 

Senate as to whether there are a"ny constitutional obstacles to the 

niaking of the treaty between the United States and France, signed 

at Versailles, June 28, 1919, have considered the question and beg to 

[report as follows : 

The text of the resolution is as follows : 

j Whereas doubts haA^e been expressed as to the authority of the treaty- making power 
under the Constitution to enter into the treaty with France, submitted" to the 
Senate for ratification on the 29th day of July, 1919: Therefore he it 
Resolved, That the Committee on the Judiciary be, and it hereby is, requested to 

[inquire and advise the Senate as to whether tliere are any constitutional obstacles to 

|the making of the said treaty. 

The treaty referred to in the resolution is as follows : 



[Agreement Between the United States and France, 

June 28, 1919. 



Signed at Versailles 



WTbiereas the United States of America and the French Republic are equally ani- 

I mated by the desire to maintain the Peace of the World so happily restored by the 
Treaty of Peace signed at Versailles the 28th day of June, 1919, putting an end to the 

I war begun by the aggression of the German Empu-e and ended by the defeat of that 

I Power; and. 

Whereas the United States of America and the French Republic are fully persuaded 

(that an unprovoked movement of aggi'ession by Germany against France would not 
only violate both the letter and the spirit of the Treaty of \'ersailles to which the 
United States of America and the French Republic are parties, thus exposing France 
anew to the intolerable burdens of an unprovoked war, but that such aggression on 
the part of Germany would be and is so regarded by the Treaty of Versailles as a 
hostile act against all the Powers signatory to that Treaty and as calculated to disturb 



2 TREATY BETWEEN THE UNITED STATES AND FRANCE. 

the Peace of the World by involving inevitably and dhectly the States of Europe and 
indirectly, as experience has amply and unfortunately demonstrated, the world at 
large; and. 

Whereas the United States of America and the French Republic fear that the 
stipulations relating to the left bank of the Rhine contained in said Treaty of Versailles 
may not at first provide adequate security and protection to France on the one hand 
and the United States of America as one of the signatories of the Treaty of Versailles on 
the other; 

Therefore, the United States of America and the French Republic having decided 
to conclude a treaty to effect these necessary purposes, Woodrow Wilson, President 
of the United States of America, and Robert Lansing, Secretary of State of the 
United States, specially authorized thereto by the President of the United Stateb, 
and Georges Clemenceau, President of the Council, Minister of War, and Stephen 
Pichon, Minister of Foreign Affairs, specially authorized thereto by Raymond 
Poincare, President of the French Republic, have agreed upon the following articles: 

Article I. 

In case the following stipulations relating to the Left Bank of the Rhine contained 
in the Treaty of Peace with Germany signed at Versailles the 28th day of June, 1919, 
by the United States of America, the French Republic and the British Empire among 
other Powers: 

"Article 42. Germany is forbidden to maintain or construct any fortifications 
either on the left bank of the Rhine or on the right bank to the west of a 
line drawn 50 kilometres to the East of the Rhine. 
"Article 43. In the area defined above the maintenance and assembly of 
armed forces, either permanently or temporarily, and military manceu-vTes 
of any kind, as well as the upkeep of all permanent works for mobilization 
are in the same way forbidden. 
"Article 44. In case Germany violates in any manner whatever the provi- 
sions of Articles 42 and 43, she shall be regarded as committing a hostile 
act against the Powers signatory of the present Treaty and as calculated to 
disturb the peace of the world," 
may not at first provide adequate security and protection to France, the United 
States of America sliall be bound to come immediately to her assistance in the event 
of any unprovoked movement of aggression against her being made by Germany. 

Article II. 

The present Treaty, in similar terms wth the Treaty of even date for the same 
purpose concluded between Great Britain and the French Republic, a copy of which 
Treaty is annexed hereto, will only come into force when the latter is ratified. 

Article III. 

The present Treaty must be submitted to the Council of the League of Nations, 
and must be recognized by the Council, acting if need be by a majority, as an engage- 
ment which is consistent with the Covenant of the League. It -v^dll continue in force 
until on the application of one of the Parties to it the Council, acting if need be by 
a majority, agrees that the League itself affords sufficient protection. 

Article IV. 

The present Treaty will be submitted to the Senate of the United States at the 
same time as the Treaty of Versailles is submitted to the Senate for its ad^sdce and 
consent to ratification. It will be submitted before ratification to the French Cham- 
bers of Deputies for approval. The ratifications thereof will be exchanged on the 
deposit of ratifications of the Treaty of Versailles at Paris or as soon thereafter as shall 
be possible. 

In faith whereof the respective Plenipotentiaries, to wit: On the part of the United 
States of America, Woodrow Wilson, President, and Robert Lansing, Secretary of 
State, of the United States; and on the part of the French Republic, Georges Clemen- 
ceau, President, of the Council of Ministers, Minister of War, and Stephen Pichon, 




TREATY BETWEEN THE UNITED STATES AND FRANCE. 3 

Minister of Foreign Affairs, have signed the above articles Ijoth in the ICnglish and 
Prench languages, and they have hereunto aflFixed their seals. 

Done in duplicate at the City of Versailles, on the twenty-eighth day of June, in 
the year of our Lord one thousand nine hundred and nineteen, and the one hundred 
and forty-third of the Independence of the United States of America. 

[seal.] Woodrow Wilson. 

[seal.] Robert Lansing. 

[seal.] G. Clemenceau. 

[seal.] S. Pichon. 

The treaty-mal-cing power is withheld from the States and is con- 
ferred upon the President and tlie Senate in the following paragraph 
of the Constitution: 

He [the President] shall have power, by and with the ad\dce and consent of the 
Senate, to make treaties, provided two-thirds of the Senators present concur. * * * 
(Art. II, sec. 2, cl. 2.) 

The Constitution fortifies this power in the following terms : 

The judicial power shall extend to all cases, in law and equity, arising under this 
Constitution, the laws of the L^nited States, and treaties made, or which shall be made, 
under their authority * * *. (Art. Ill, sec. 2, cl. 1.) 

This Constitution, and the laws of the United States which shall be made in pur- 
suance thereof, and all treaties made, or which shall be made, under the authority 
of the LTnited States, shall be the supreme law of the land; and the judges in every 
State shall be bound thereby, anything in the constitution or laws of any State to the 
contrary not^withstanding. (Art. VI, cl. 2.) 

There is in the Constitution no express limitation or qualification 
upon this power. The evident purpose was to vest in the President 
and the Senate that full treaty-making power which by international 
law and usage belongs to every sovereign and independent nation. 
The only restrictions are such as relate to the integrity and rights of 
the States and to the structure, operation, and integrity of the 
Federal Government. 

The treaty-making power can not do wliat the Government in its 
entirety^ is prohibited from doing. Justice Field, in the case of 
Geofroy v. Riggs (133 U. S., 267), has clearly and fully outlined the 
scope of the treaty-making power in the following terms: 

The treaty power, as expressed in the Constitution, is in terms unlimited except 
by those restraints which are found in that instrument against the action of the Gov- 
ernment or of its departments, and those arising from the nature of the Government 
itself and of that of the States. It would not be contended that it extends so far as 
to authorize what the Constitution forbids, or a change in the character of the Govern- 
ment or in that of one of the States, or a cession of any portion of the territory of the 
latter, without its consent. (Fort Leavenworth Railroad Co.i'. Lowe, 114 U. S. 525, 
541.) But with these exceptions, it is not perceived that there is any limit to the 
questions which can be adjusted touching any matter which is properly the subject 
of negotiation with a foreign country. (Ware v. Hylton, 3 Dall., 199; Chirac v. Chirac, 
2 Wheat., 259; Hauenstein v. Lynham,-100 U. S., 483; 8 Opinions Attys. Gen., 417; 
The People v. Gerke, 5 California, 381.) 

There are a number of older cases to the same effect which we deem 
it unnecessary to cite. The late case of O'Reilly de Camara v. Brooke 
(209 U. S., 45) is an illustration of the ratification of a tort by treaty. 

WiUoughby on the Constitution (vol. 1, sec. 190) states the powers 
of the Federal Government in the followiijg terms: 

Sec. 190. Tfie Federal power all-comprehensive. — The control of international rela- 
tions vested in the General Government is not only exclusive, but all-comprehensive. 
That is to say, the authority of the United States in its dealings with foreign powers 
includes not only those powers which the Constitution specifically grants it, but all 
those powers which sovereisn states in Kenera] nossp.ss with regard to matters ot 
international concern. 



4 TREATY BETWEEN THE UNITED STATES AND TRANCE. 

And Hall (English) in his work on international law, in the first 
paragraph of Chapter X, describes the power in the following terms: 

It follows from the position of a state as a moral being, at liberty to be guided by 
the dictates of its own will, that it has the power of contracting with aiiother state 
to do any acts which are not forbidden, or to refrain from any acts which are not 
enjoined by the law which governs its international relations, and this power being 
recognized by international law, contracts made in virtue of it, when duly concluded, 
become legally obligatory. 

From various sources of information it appears that such doubt 
as exists concerning the authority of the treaty-making power con- 
stitutionally to enter into the treaty in question arises by reason of 
the provision of section 8 of Article I of the Constitution, which 
provides that the " Congress shall have power to declare * * * 
war." 

But the subject of making war is not without the field which the 
treaty-making power may occupy because Congress is empowered 
to legislate with reference to it. Congress is by the same article 
authorized to legislate with reference to a great number of subjects, 
interstate and foreigTi commerce, for instance, in respect to which 
innumerable treaties have been entered into, as is shown in addresses 
made by two members of your committee, copies of so much of which 
address as are pertinent to the present inquiry are appended to this 
report. They were made in vindication of the constitutionality of the 
covenant for the league of nations, and particularly Article X 
thereof, but seems to the committee equally applicable to the question 
concerning which its views have been solicited. 

Is the treaty in question of a character that the President and the 
Senate are authorized to make? To answer this question, without 
any purpose to justify the wisdom of the treaty, a brief statement 
of facts is necessary. It is evident that Germany in the recent 
war aimed at the crippling and destruction of France — our 
ally in the Revolutionary War. Our country entered into the war 
on the primary and technical ground that Germany had invaded, 
attacked, and in part destroyed our commerce on the high seas, and 
had sought to sever our commercial intercourse with both France 
and England, as well as with other portions of Europe. The menace 
came from Germany, and it was a continuing menace. To remove 
that menace, both for the present and the future, it became necessary 
for our country to cooperate with France, as well as with England, 
in the great struggle. Without their aid, we could not by ourselves 
have vanquished Germany. It was, moreover, evident that if 
France and England were destroyed or seriously crippled, Germany 
would have a free hand against our country and our commerce, and 
we would be to a greater or less extent at her mercy. 

While Germany has been vanquished, she is still, by reason of her 
great resources, her large population, and her military and imperial- 
istic spirit, liable to be a menace in the future, for nothing but force 
is likely to restrain her from seeking world dominion at the earliest 
opportunity. Compared with France, her losses in the war were 
moderate. France, with a population of a little more than half of 
Germany, lost in killed over 1,200,000 of her population and in crip- 
pled and wounded more than twice that number. One-fifth of her 
territory, and that the most valuable part, was devastated and 
reduced to a wilderness by the German armies. And she incurred 



TREATY BETWEEN THE UNITED STATES AND FRANCE. 5 

a debt so large as to strain her credit to the utmost and to make it 
a most serious problem to liquidate the same. In resources and in 
manpower Germany is nearly double that of France, and if left free 
and untrammeled — in the unrepentant mood she seems to be in — 
she could, in the near future, easily overrun and cripple, if not destroy, 
France. It is for the interest of our country that France should be 
allowed to recuperate and recover her old time vigor, for she will 
then be a great shield and protection to us against the German 
menace in the future, and, besides, she will be a great source of 
profitable commercial intercourse. 

Aside from England, no country under present conditions is more 
vitally interested in preserving the integrity of France than is our 
own country. And what we promise to do for France by the pro- 
posed treaty England is also ready to undertake. 

The material covenant of the treaty is found in the following 
words : 

The United States of America shall be bound to come immediately to her [France] 
assistance in the event of any unprovoked movement of aggression against her [France] 
being made by Germany. 

It wiU be seen that this covenant only aims at protection against 
Gennany, and that it is of a temporary character, to be merged in 
and substituted by the authority of the league of nations when that 
is established and put into operation. As the armistice covers the 
ground between the end of the war and the ratification of the treaty 
of peace, so the treaty in question aims to cover the ground from the 
time of the adoption of the treaty until the league of nations, pro- 
vided for in the treaty, can take its place. In other words, the treaty 
in question is of a temporary character, to be merged in the final 
treaty of peace. 

Such a treaty is clearly warranted by international law and usage, 
and is, therefore, within tlie scope of the treaty-making power of the 
United States. 

Vattel, in liis Law of Nations, lays down the doctrme and rule of 
international law in the following terms : 

But, as the weaker party ought, in his necessity, to accept with gratitude the 
assistance of the more powerful, and not to refuse him such honours and respect as 
are flattering to the person "who receives them, without degrading him by whom they 
are rendered; so, on the other hand, nothing is more conformable to the law of nature 
than a generous grant of assistance from the more powerful state, unaccompanied by 
any demand of a return, or, at least, of an equivalent. And in this instance, also, 
there exists an inseparable connection between interest and duty. Sound policy 
holds out a caution to a powerful nation not to suffer the lesser states in her neighbor- 
hood to be oppressed. If she abandon them to the ambition of a conqueror, he will 
soon become formidable to herself. Accordingly, sovereigns, who are in general 
sufficiently attentive to their own interests, seldom fail to reduce this maxim to 
practice. (Sec. 179, chap. 12, book 2.) 

Wheaton, in his Elements of International Law, states : 

The convention of guaranty (or guarantee) is one of the most usual international 
contracts. It is an engagement by which one state promises to aid another where 
it is interrupted, or threatened to be disturbed, in tlae peaceable enjoyment of its 
rights by a third power. * ■* * The guaranty may also be contained in a dis- 
tinct and separate convention, or included among the stipulations annexed to the 
principal treaty intended to be guaranteed. (Pp. 378, 379 (1916).) 

We deem it unnecessary to cite further authority on this point. 



6 TREATY BETWEEN THE UNITED STATES AND FRANCE. 

Without intending to indorse all that is said in the addresses 
hereto appended, the committee adopts the general argmnent thereof 
as in entire accord with its views. 

It is advanced that though an ordinary treaty of alliance is not 
beyond the power of our Government, this particular treaty offends 
against the Constitution because, by Article III, there is an unlawful 
delegation of the power conferred by the Constitution, or that by it 
there is introduced an agency in the treaty-making power not recog- 
nized by the Constitution. 

That article reads as follows : 

The pi-esent treaty must be submitted to the counsel of the League of Nations 
and must be recognized by tlie council, acting if ueed be by a majority, as an 
engagement which is consistent with the covenant of the league. It will con- 
tinue in force until on the application of one of the parties to it the council, 
acting if need be by a majority, agrees that the league itself affords sufficient 
protection. 

But in the view of the committee that article merely expresses a 
condition upon which the treaty becomes- effective in the first place 
and another condition upon the occurrence of which the treaty is 
terminated. It is scarcely open to controversy at this day that a 
statute is not invalid because of a condition that it is to go into effect 
upon a certain contingency as, for instance, on its approval by the 
electorate of a State. Similarly, it may pass out of existence upon 
the happening of some other event in the statute prescribed. The 
principle involved had the express approval of the Supreme Court 
in Field v. Clark (143 U. S., 649), and more recent cases. There 
seems to be no reason to doubt that the principle is equally applicable 
to treaties. 

No attempt is made in the treaty, it will be noted, to invest the 
council with power to add to or subtract from its provisions or to 
modify them in any way. 

The treaty under consideration is clearly warranted by interna- 
tional law, and as such is within the scope of the treaty-making 
power; and there is nothing in the Constitution which can be con- 
strued to prohibit it. 



SPEECHES 

OF 

Senator Thomas J. 'VV^alsh 

OF JVtONTANA 
AND 

Senator Frank B. Kellogg 

OF IMINNESOTA 



EXCERPTS FROM THE SPEECH OF SENATOR THOMAS J. WALSH, 
OF MONTANA, IN THE SENATE ON JUNE 11, 1919. 

THE COVENANT AND THE CONSTITUTION. 

Mr. WALSH of Montana. Mr. President, in the general assault upon the plan 
devised by the statesmen assembled at the peace conference at Versailles for a 
league of nations to insure the future peace of the world, it is insisted that the 
covenant submitted is in contravention of the Constitution of the United States, 
and ought, for that reason, to be rejected by the Senate. 

This view has not only been advanced in speeches on the floor, but there 
was introduced into the Record a contribution to the press by an eminent 
ju)'ist of the District of Columbia, and wide circulation has been given to 
addresses of a former ambassador, a professor of law, in which it is elaborately 
supported. 

More recently an address by a Federal judge, asserting that the covenant 
contravenes the Constitution, was made a part of the Record, and on yester- 
day V. resolution was presented by the junior Senator from Pennsylvania, for- 
merly Attoi'ney General of the United States and later Secretary of State, 
in which the league is denounced and the demand is made that the covenant 
be separated from the other provisions of the treaty, one paragraph of the 
resolution, evidently aimed at the covenant, being as follows: 

That since the people of the United States have themselves determined and provided 
in their Constitution the only ways in which the Constitution may be amended, and 
since amendment by treaty stipulation is not one of the methods which the people have 
so prescrilied, the treaty-making power of the United States has no authority to mal^e 
a treaty which in effect amends the Constitution of the United States, and the Senate 
of tlie United States can not advise and consent to any treaty provision which would 
have such effect if enforced. 

The basis of the recital from this high authority that the treaty of which 
the covenant forms a part is inconsistent with the Constitution will be re- 
ferred to later. 

Journals of wide circulation and more or less influence, antagonistic to the 
league, have assumed, without any attempt at demonstration, that the conten- 
tion so made is confessedly sound, and that, as one such at least has expressed 
it, radical amendments of our organic law will be necessary before the United 
States can enter into the league. The eminent Senator from Massachusetts 
in the debate with President Lowell, of Harvard, which attracted wide notice, 
pursued this easy method of disputation, and having assumed the antagonism 
to be indisputable, added : " No doubt we could amend our Constitution to fit 
the league, but it would take some time." 

The conunent just made is offered lest, in view of the history of our country, 
to which reference will be made, this effort to refute the contention thus 
advanced might l)e deemed a work of pedantic supererogation. 

BASIS OF CLAIM. 

In the main it is founded upon the claim that by the treaty, of which the 
league is a constituent feature, in the making of which the House of Repre- 
sentatives has no part, our country becomes obligated in a way in which it 
can be bound, or becomes conmiitted to a course or policy upon which it can 
enter only through the action of Congress — that is to say, the concurrent 
action of both Houses of the national legislature. It is particularly urged that 
the covenant obligates us to wage w^ar in certain contingencies, while the Con- 
stitution (Art I, sec. S) declares that "Congress shall have power to declare 
war." The proposition is extravagantly expressed by some as an attempt to 
transfer the power to declare war from Congress to the league. 

9 



10 TREATY BETWEEN THE UNITED STATES AND FRANCE. 

In an adcli-ess delivered in the Senate on December 18 last by the junior 
Senator from Pennsj'lvania the question was raised by the following inquiry 
and comment : 

Suppose that it were proposod that the United States should bind itself in advance by 
tr(?aty to go to war in giv(>n circumstances. Under the Constitution war can be declared 
only by the Congress. How could the President, by negotiating a treaty, and the Senate, 
by consenting to its ratification, bind thi>s country to declare war? A declaration of war 
is, under the Constitution, a prerogative of the Congress. The appropriations to initiate 
or to conduct war are in the discretion of the Congress. 

It will be noted that the Senator, whose acknowledged ability as well as his 
experience as Attorney General and Secretary of State give to his utterances on 
the subject he was discussing unusual weight, did not unequivocally commit 
himself to the view that the treaty-making power is not sufficiently broad to 
warrant a convention obligating the Nation to make war, either presently or 
upon a future contingency, yet the casual reader, and especially one disinclined, 
for any reason, to give the league his support, would unquestionably receive the 
impression from the language quoted that the Senator subscribed to and had 
announced that doctrine. 

SUCH A TKEATY NOT U'NIQUE. 

In this connection an incident in our diplomatic history, presently to be 
referred to, is illuminating. The covenant does undoubtedly, should the treaty 
be signed, obligate this country to make war. Article 10, frequently referred to, 
reads as follows : 

The members of the league undertake to respect and preserve, as against external 
a-;;gression, the territorial integrity and existing political independence of all members of 
the league. In case of any such aggression, or in case of any threat or danger of such 
aggression; the council shall advise upon the means bv which this oblisation shall be 
fulfilled. 

That plainly means that if the territory of any member is invaded or 
threatened by the military forces of any other nation within or without the 
league, all other members thereof will come to its assistance to repel the 
aggressor and coerce him into keeping the peace. It may be that commercial 
pressure and isolation contemplated by other provisions of the covenant may 
be found effective to restrain a threatened or anticipated military movement 
directed at a member of the league, but all efforts less drastic failing, the obli- 
gation can be honorably discharged only by joining our forces with those of the 
threatened or invaded country and of the other nations obligated with us and 
making war upon the disturber of the general peace. 

Much eloquence has been expended in denunciation of this feature of the 
league, but it is the soul and spirit of the covenant. Cut it out, and the heart 
is cut out of the only plan the statesmanship of the world has been able to 
devise or has ever been able to offer for the preservation of the peace of the 
world as a substitute for the system which has again exhibited itself to an 
agonized world as a colossal and yet miserable failure, but to which some Senators 
still exhibit a fatuous attachment. It is true, beyond doubt, that that article 
obligates us to make war. But we have not hesitated heretofore to assume a 
like obligation. We entered into a treaty with the Republic of Panama, the 
first article of which is as follows : 

Art. 1. The United States guaranties and will maintain the independence of the 
Republic of Panama. 

No one can doubt the significance of that undertaking. We go to war with 
any country that attempts to reduce the republic through whose concession we 
built the Panama Canal. That treaty was entered into in the year 1904, the 
late Theodore Roosevelt being President of the United States and Philander C. 
Knox, now a Senator from the State of Pennsylvania, his Attorney General and 
official legal adviser. Whatever view may now be entertained by the latter, it 
is quite evident that in 1904, at least, he harbored no serious doubt of the bind- 
ing character of a treaty under which the United States became obligated to 
resort to the dread arbitrament of war. It would be doing him, as well as the 
President of the United States who negotiated the treaty, a gross injustice to 
Imagine that they accepted the grant of the Canal Zone upon the considerations 
numtid in the treaty, the first in importance to the feeble young Republic of 
Panama being the guarantee of its independence, if either of them at the time 
conceived that there was any doubt of the authority of the President and the 
Senate in the exercise of the treaty-making power so to bind the Nation. The 
comment of the Senator above quoted may well arouse apprehensions on the 



TREATY BETWEEN THE UNITED STATES AND FRANCE. 11 

part of the Government and people of I'anania which, in view of his relation to 
the treaty, he will doubtless hasten to still, if his further study -of the subject 
will permit, by the assurance that whatever doubts he may have entertained 
In the month of December last concerning the binding character of article 1 
of the treaty of 1904, they have, on further reflection, been resolved in favor of 
the view that it is a solemn obligation of the United States entered into in 
conformity with the Constitution. 

It is persuasive thai; though the treaty referred to was, at the time it was 
negotiated, the subject of heated controversy, the right of the President and the 
Senate under the Constitution to obligate the Nation, as recited in article 1, 
was questioned by no one, so far as the report of the public debates in relation 
to the treaty discloses, though there were then in the Senate many profound 
lawyers, life-long students of the Constitvation, including Senators Bacon, Hoar, 
and Spooner. 

Among those voting to ratify it were the following, still Members of the 
Senate : Senatoi-s Lodge, McCumber, Nelson, Penrose, Simmons, Smoot, and 
Warren. It was not without precedent in assuming that there was no trans- 
gression of the Constitution in the treaty. In the year 1846 a treaty was con- 
cluded with the Republic of New Granada, in which, mention having been made 
of iheans of transportation across the Isthmus of Panama and certain conces- 
sions in relation thereto granted to the United States, our Government sub- 
scribed to the undertaking, evidenced by the following clause thereof : 

And in order to secure to themselves the tranquil and constant enjoyment of these 
advantages, and as an especial compensation for the said advantages and for the favors 
they have acquired by the fourth, fifth, and sixth articles of this treaty, the United 
States guai'antee, positively and eflicaciously, to New Granada, by the present stipulation, 
the perfect neutrality of the before-mentioned Isthmus, with the view that the free 
transit from the one to the other sea may not be interrupted or embarrassed in any 
future time while this treaty exists ; and, in consequence, the United States also guar- 
antee in the same manner the rights of sovereignty and property which New Granada 
has and possesses over the said territory. 

At the time of the ratification of that treaty Webster, Benton, Calhoun, and 
Clayton were ilembers of the Senate. None of them, so far as history discloses, 
had any misgivings concerning the power of the President and the Senate thus 
to agree for the Nation. 

Webster had only recently returned after quitting the post of Secretary of 
State. Shortly thereafter, in the course of a speech delivered in the Senate, he 
referi'ed to the provision of the treaty above quoted and alluded to it as a bind- 
ing obligation of the Government, saying: 

This Go^ei-nment, looking upon this stipulation as a benefit obtained, a boon conceded 
by the Government of New Granada, as an equivalent for this consideration, entered on 
its part into an engagement to protect and guarantee and defend the neutrality of this 
whole Isthmus. This will be seen by reference to the thirty-fifth article of the treaty, 
which will be found in the volume of the laws of the last session. It is there very dis- 
tinctly stated. There is no question about it. We are under treaty obligations to main- 
tain the neutrality of this Isthmus and the authority of the Government of New Granada 
over it. 

Senators ^^•ho insistently protest against the league because the covenant 
under which it is to operate obligates each member to come to the aid of any 
that may be attacked by another nation — an obligation which contemplates the 
waging of war — but into which, it is asserted, this Government can not con- 
sistently with the Constitution enter, constitute themselves the special cham- 
pions of the Monroe doctrine, the maintenance of which they aver to be essen- 
tial to the preservation of the national integrity. With repeated professions of 
their devotion to America and her institutions, carrying faintly the suggestion 
that it is of a quality superior to that of those who differ with them concern- 
ing the wisdom of entering into the league, they proclaim that the Monroe 
doctrine must be upheld at all cost. But what is the Monroe doctrine but a 
voluntary obligation assumed by the United States to " respect and preserve as 
against external aggression" — external in this case signifying tran.soceanic — 
the Republics of South and Central America? It may be more, but it is at least 
that. If we were to enter into a treaty with Brazil, say these expounders of the 
Constitution, by which, upon some consideration moving to us, we undertook to 
" preserve as against external aggression " her " territorial integrity and exist- 
ing political independence," it would be a void act, but we are even now bound 
to do so without a treaty under peril of national obliteration. 



12 TREATY BETWEEN THE UNITED STATES AND FRANCE. 

HISTOKY OF THE CONTENTION. 

The controversy over the limitations of the treaty-making power of the Gov- 
ernment or of the Executive and the Senate, now renewed, is as old, ahnost, as 
the Constitution. It was precipitated by the famous Jay treaty, negotiated in 
1794, during the administration of President Washington, and was then disposed 
of in a way that ought to have been regarded as a final internment of the conten- 
tion that is the subject of this discussion. Like Banquo's ghost, however, it will 
not down. It has again and again been urged that in all cases in which, by the 
Constitution, the action of Congress is necessary — that is to say, participation by 
the House of Representatives is essential in order that the treaty may be carried 
out and its obligations discharged — the Executive and the Senate are without 
authority to enter into the treaty, wanting the concurrence of the House, or the 
subject altogether transcends the treaty-making power of the Government. The 
contention has been uniformly rejected, but it renews its youthful vigor from 
time to time and is urged with all the ardor that ordinarily attends a first pres- 
entation, and without the slightest reference to or regard for its unfortunate 
history. * * * 

The Jay treaty gave rise to much acrimonious discussion in the country while 
it was before the Senate ; feeling in respect to it, more or less partisan in char- 
acter, ran high, but it was eventually ratified by a bare two-thirds vote. It 
provided for the appointment of various commissions to adjust boundary dis- 
putes and to report on claims growing out of the W^ar for Independence. In due 
course, on the exchange of ratifications, bills were introduced in the House of 
Representatives making appropriations to meet the salaries of the commissioners 
so appointed and the other expenses attendant on their labors. Thereupon the 
contention heretofore adverted to was made, that inasmuch as the treaty could 
not be carried out without action by the House, it remained in the stage of nego- 
tiation until the approval of that body was accorded it, that any nation deal- 
ing with ours was bound to take notice of the limitation on the treaty-making 
power thus asserted, so that no breach of national faith could be charged if the 
House withheld its approval, and that the duty devolved upon that body to enter 
into an inquiry as to the wisdom of the still imperfect treaty submitted to it. 
This view secured the adherence of a majority of the House, which adopted a 
resolution calling upon the President for the correspondence and documents re- 
lating or leading to the treaty. President Washington declined to submit the 
papers, saying in a dignified reply made to the request of the House, " It is per- 
fectly clear to my understanding that the assent of the House of Representatives 
is not necessary to the validity of a treaty." Among other reasons advanced by 
him impelling his mind to that conclusion, he observed : 

Having been a member of the general convention and knowing the principles on which 
the Constitution was formed, I have ever entertained but one opinion on this subject ; 
and from the first establishment of the Government to this moment my conduct has 
exemplified that opinion — that the power of making treaties is exclusively vested in the 
President, by and with the advice and consent of the Senate, provided two-thirds of the 
Senators present concur ; and that every treaty so made and promulgated thenceforward 
became the law of the land. It is thus that the treaty-making power lias been under- 
stood by foreign nations, and in all the treaties made with them we have declared and 
they have believed that when ratified by the President, with the advice and consent of 
the Senate they became obligatory. In this construction of the Constitution every 
House of Representatives has heretofore acquiesced, and until the present time not a 
doubt or suspicion has appeared, to my knowledge, that this construction was not the 
true one. Nay, they have more than acquiesced ; for till now, without controverting 
the obligation of such treaties, they have made all the requisite provisions for carrying 
them into effect. 

The debate on the bills was renewed on the receipt of the President's reply, 
his position being eloquently championed by Fisher Ames, of Massachusetts. 
A resolution that the legislation ought to be enacted was carried by a close vote, 
and the bills were duly passed. 

The baselessness of the contention appeared so obvious to Chancellor Kent 
that, referring to the resolution of April 7, 1796, heretofore adverted to, in his 
commentaries he said : 

It can not be mentioned at this day without equal regret and astonishment that such a 
resolution passed the House of Representatives. 

The discussion of the subject was renewed over the Louisiana Purchase treaty. 
A like resolution was introduced in the House, which was called upon to make 
provisions for the payment of the purchase price of the vast domain ceded by 
France — $15,000,000 — but It was defeated, the Federalists leading in the conten- 
tion that it was the right and the duty of the House to inquire into the merits 



TREATY BETWEEN THE UNITED STATES AND FRANCE. 13 

of the treaty, as the Republicans, by which name the party of Jefferson was then 
Icnown, had lecl in opposition to the Jay treaty. The liistorian does not hesitate 
to assign partisan bias as the moving influence in each instance for the attitude 
of those who insisted that the treaty was void or inchoate, wanting the approval 
of the House of Representatives, and the circumstance that the leaders of each 
of the parties of that day took a position in 1803 the very reverse of that they 
assumed in 1796 leaves little doubt of the justice of the judgment thus passed 
upon their official acts. 

The chronicler of the events of our fateful day will not fail to note how 
statesmen who, scarcely more than three years ago, when the hope v,-as reason- 
ably indulged by them that the treaty of peace presently to be submitted to us 
would be negotiated during a Republican administration, extolled the plan of a 
league of nations to preserve the peace of the world, then contemplated as an 
integral part of the treaty, as worthy of all praise, a consummation most dev(jutly 
to be wished, now that it comes as the result of the labors of a Democratic 
President, denounce it as an abomination. 

The resolution looking to an inquiry by the House of Representatives into the 
course of the negotiations resulting in the treaty with France having been dis- 
posed of, it quickly recognized the binding force thereof, the oI)ligation which, 
through it, had been incurred by the Nation, and passed the necessary legislation 
for the liquidation of the debt. 

The controversy was renewed, however, in 1816 over the commercial treaty 
with Great Britain ; in 1834 in connection with a later treaty with France ; in 
1867 after the treaty with Russia ceding Alaska ; in 1887 while the Hawaiian 
treaty was before the Senate ; in 1899 over the treaty with Spain, by which the 
Philippines were acquired ; and, in a mild way, in 1904, when the treaty Avith 
Panama was being considered. 

SUBJECT NOT EXCLUDED FROM TREATY-MAKING POWER BECAUSE CONGRESS EMPOWERED 
TO LEGISLATE CONCERNING IT. 

A number of the treaties referred to called for large appropriations to pay for 
territory acquired ; others required legislation modifying our tariff and tonnage 
laws; others, as heretofore pointed out, bound us in defensive alliances, contem- 
plating in each case war against the enemy of the other party to tlie treaty. In 
no case has Congress ever declined to pass the necessary legislation to make 
effective or to carry into execution the treaty. 

It is of no consequence that the treaty deals with a subject with reference to 
which Congress Is given power to legislate. The President, by and with the 
advice and consent of the Senate, is, by the Constitution, given power to make 
treaties which, with the Constitution and laws of the United States made in 
pursuance of it, are the supreme law of the land, as the Constitution declares. 

It has been held by the Supreme Court so often that reference to specific cases 
is unnecessary ; that a treaty in conflict with a prior act of Congress repeals it 
and G conrcrso; that a later act of Congress inconsistent with a treaty renders 
it nugatory, the later law prevailing. There could, of course, be no conflict if 
the two did not occupy the same field. 

By the Constitution a treaty is placed on the same footing and made of like obligation 
with an act of lesislation. Both are declared by that instrument to be the supreme law 
of the land, and no superior efficacy is given to either over the other. (Whitney v. Rob- 
ertson, 124 U. S., 190.) 

The theory that the treaty-making power does not extend to any subject with 
reference to which power is vested in Congress, if it ever was seriously main- 
tained, was long ago explocled. I can not hope to expose its utter weakness with 
anytlting like the eloquence or lucidity with which the task was discharged l)y 
Hon. James Barbour, a Senator from Virginia, in the great debate on the com- 
mercial treaty with Great Britain in 1816. I submit, however, a few observa- 
tions in that connection. 

The Constitution gives to Congress power to legislate with reference to foreign 
commerce, but this does not mean that the President may not, by and with the 
advice and consent of the Senate, enter into commercial treaties. The constitu- 
tional convention clearly contemplated that such treaties would come within 
the power it proposed to confer upon the President and the Senate, since it 
rejected a proposition to require the assent of two-thirds of all the members of 
the Senate for the ratification of commercial treaties, though the concui-rence 
of two-thirds of those present would suffice in the case of other treaties. Com- 



14 TREATY BETWEEI^ THE UNITED STATES AND FKANCE. 

mercial treaties have been negotiated witli nearly every civilized country, deal- 
ing with a multiplicity of questions affecting transactions in foreign commerce, 
in most instances either requiring action by Congress or stipulating against its 
action or constraining it to action along prescribed lines. 

So Congress is given power by the first clause of section 8 of Article I of the 
Constitution to lay and collect duties, which further provides that all bills for 
raising revenue shall originate in the House of Representatives. Yet by the 
Louisiana Purchase treaty it was stipulated that for 12 years the ships of France 
or Spain entering any of the ports of the ceded territory should be required to 
pay only such toimage charges and duties upon their cargoes as should be exacted 
of the ships and citizens of the United States, and that such privileges should 
be extended to no other nation. 

By article 1 of the treaty with Cuba, proclaimed December 17, 1903, it is 
provided that all products of that country then admitted to the United States 
free of duty should thereafter, so long as the treaty stood, be so admitted without 
payment of any duty, and by article 2 of the same treaty the United States bound 
itself to admit all other products of the young Republic with a difterential in 
its favor of 20 per cent. An examination of the record discloses that among, 
those voting to ratify that treaty was the senior Senator from Massachusetts, 
who, in the debate vrith Pi-esident Lowell, told his auditors that the treaty 
embracing the league covenant, " because the tariff is involved in the article for 
the boycott," and because it allows other nations to " meddle with our tariff," 
" runs up against a provision of the Constitution," which " provides that all 
revenue bills shall originate in the House of Representatives." The covenant 
contemplates that instead of resorting to war to coerce a recalcitrant nation 
commercial pressure or commercial isolation may be resolved upon by the league. 
If it recommends that course, ■ the Nation binds itself to lay an embargo, a 
procedure expressly held by the Supreme Court more than a hundred years ago 
to be within the power of Congress to direct. The tariff is only remotely in- 
volved, if involved at all. By what provision of the covenant do w^e permit 
foreign nations to '" meddle " with our tariff? It is difficult to conceive how our 
tariff could come before the league for consideration. It is a domestic question 
ex]:)ress]y excluded from those with which the league deals, distinctively a 
matter of domestic policy which each nation has heretofore solved without 
question as to its right under international law to do so, in accordance with its 
own views of its interest. Our tariff has never yet brought us to the threshold 
of war with any country. If we do not discriminate against any particular 
nation, and our commercial treaties forbid us to do so, even if our settled policy 
did not, how can any complain? We have, as stated, repeatedly made treaties 
by which, in consideration of reciprocal advantages they respectively accorded 
us, bound ourselves that Congress would not exercise its full powers with refer- 
ence to the tariff, so extensive as to permit our Government to reward its friends 
and punish its enemies through discriminatory duties. In that sense we have 
permitted foreign nations in the past to " meddle " with our tariff. * * *. 

Again, the Constitution invests Congress with the power to " raise and support 
armies " and to " provide and maintain a navy," but that does not preclude 
the President and the Senate, in the exercise of the treaty-making power, from 
entering into a treaty limiting the size or nature of our Military Establishment 
or the number of ships we shall maintain as a part of our Navy, or the par- 
ticular waters in which they may be stationed. We have, in fact, entered into 
a treaty with Great Britain, scrupulously observed for over a century, not to 
keep on the Great Lakes more than a limited number of armed vessels, fitted only 
for police and like duties appertaining to the collection of revenue, a reciprocal 
agreement having been entered into by the British Government on behalf of 
Canada. Despite repeated assaults upon that convention, it remains a solemn 
obligation of this Government, as was conclusively demonstrated a few days 
ago by the eloquent junior Senator from Arizona. There would seem to be no 
reason why we might not enter into a reciprocal treaty, under which both coun- 
tries interested would undertajve not to maintain military posts along the great 
international boundary line between this country and Canada, a policy that has 
been pursued by each since eai'ly in the last century without a treaty. 

Congress is empowered to make laws in relation to the naturalization of 
aliens, but in perhaps every treaty through which any addition was made to our 
territory stipulations are found through which the subjects or citizens of the 
State making the cession, residing in the newly acquired territory, were admitted 
to citizenship. Such wholesale citizenship was conferred upon the inhabitants 



TREATY BETWEEN THE UNITED STATES AND FEANCE. 15 

of Florida by the treaty of cession with Spain ratified in 1821. The United 
States even obligated itself by that treaty to admit Florida iiito the Union as 
one of the States. 

Congress is authorized to make all wodful ruU's and regulations conceiving 
the territorj' and other property of the United States. W(> negotiated a treaty 
Avitli Japan, Russia, and Great Britain by wliich the United States, in order to 
conserve the fur-seal herd, whose breeding grounds are on the Pi'il)ilof Islands, 
from extinction through pelagic sealing carried on by the citizens or subjects 
of those countries, agreed to kill annually the mature bachelor seals resorting 
to the islands and to divide the skins in proportions specified in the treaty 
between the nations named and our own, they and we agreeing to make pelagic 
sealing criminal. It may be that the seals in the sea are ferae natura, belong- 
ing to no one, but we have all the incidents of ownership in them while they 
are on the breeding grounds, the property of the United States. 

Is there any doubt that a treaty could be made with Great Britain by which 
this country should make an island in Lake Superior a bird refuge, if she 
should devote an adjacent island on her side to the same purpose, or with 
Mexico to the effect that if she would establish a refuge for migratory birds 
wintering in her territory we v\'Ould set apart certain territory in Alaska for 
their protection on which they make their summer home? 

Note that the provision of the Constitution gives to Congress power not only 
to make all needful laws respecting the territoi-y, but as well respecting other 
]>roperty of the United States. We have a treaty with Great Britain concerning 
the use of the Sault Ste. Marie Canal and another concerning the use of the 
Panama Canal. In all the heated controversy over the subject of the tolls, par- 
ticipated in by the ablest lawyers in America, no one ventured to contend that 
the treaty is void because dealing with a subject with reference to which Con- 
gress is given power to legislate. 

The position that a subject is beyond the treaty-making power because within 
the powers granted to Congress is utterly indefensible and need be no longer 
noticed. 

Heretofore one of the most distinguished expositors of this theory of our 
Constitution, now so eagerly embi'aced by the opponents of the league, was a 
German jurist — Dr. Ernest Meier, a professor in one of the universities of his 
country, who in a volume of his lectures commented as follows : 

Congress has, under the Constitution, the right to lay taxes and imposts, as well as to 
regulate foreign trade, but the President and the Senate, if the "treaty-making power" 
be regarded as absolute, would be able to evade this limitation by adopting treaties which 
would compel Congress to destroy its whole tariff system. According to the Constitution. 
Congress has the right to determine questions of naturalization, of patents, and of copy- 
right. Yet, according to the view here contested, the President and Senate, by a treaty, 
could on Ihese important questions utterly destroy the legislative capacity of the House 
of Representatives. The Constitution gives Congress the control of the Army. Participa- 
tion in this control would be snatched from the House of Representatives by a treaty with 
a foreign power by which the United States would bind itself to keep in the field an army 
of a particular size. The Constitution gives Congress the right of declaring war ; this 
right would be illusory if the President and Senate could by a treaty launch the country 
into a foreign war. The power of borrowing money on the credit of the United States 
resides in Congress ; this power would cease to exist if the President and Senate could by 
treaty bind the country to the borrowing of foreign funds. By the Constitution "no 
money shall be drawn from the Treasury but in consequence of appropriations made by 
law" : but this limitation would cease to exist if by a treaty the United States could be 
bound to pay money to a foreign power. * * * Congress would cease to be the law- 
making power as is prescribed by the Constitution : the lawmaking power would be the 
President and the Senate. Such a condition would become the more dangerous from the 
fact that treaties so adopted, being on this particular hypothesis superior to legislation, 
would continue in force until superseded by other treaties. Not only, therefore, would a 
Congress consisting of two Houses be made to give way to an oligarchy of Presi<lent and 
Senate, but the decrees of this oligarchy, when once made, could only be changed by con- 
currence of President and of senatorial majority of two-thirds. 

The war has demonstrated how feebly the German mind has been able to 
comprehend the American character or the American system. The evils lie 
foresees may, indeed, ensue, but none of them ever have befallen us, and the prob- 
ability of our experiencing them is too remote to prompt us to revise our Con- 
stitution because of the defects and dangers he so generously points out. His 
apprehensions are quite like those that the opponents of the Constitution sought 
to arouse when it was before the people for ratification. The dangers inherent 
in the treaty-making power were a fruitful theme in those days. Indeed, the 
constitutional convention was not without a keen sense of the trtMuendous nature 
of the authority it was extending to the p]xecutive and the Senate through the 
few brief words in which it is c(^nveyed. But it rightly concluded that a compact 
with a foreign government which commanded the support of tiie President and 



16 TREATY BETWEEN THE UNITED STATES AND FRANCE. 

two-thirds of the Senate could scarcely be inimical to the Avelfare of the Union, 
so far as enlightened public opinion could discern the national interest, and that 
it was scarcely conceivable that such concert could be secured for a policy that 
was violative or destructive to American ideals. 

LIMITATIONS ON TEEATY-SrAKING POWER CONSIDEEED. 

But it is asserted that though the treaty-making power may be vast, it is 
not unlimited. Undoubtedly so. It is said to be impossible to frame a power 
of attorney in terms so general as not to be subject to implied limitations. 
Whatever the limitations on the treaty-making power, they are implied ; none 
Avliate-ser are expressed. " He [the President] shall have power, by and with 
the advice and consent of the Senate, to make treaties, provided two-thirds of 
tliG Senat(>rs concur," is the simple language of the Constitution. Nothing is 
excluded in express terms. No particular kind of treaties is specified, so that 
all kinds are included — treaties of alliance, offensive and defensive, commercial 
treaties, extradition treaties, arbitration treaties. 

In the opinion of the Supreme Court of the United States (Haueustein v. 
Lynham, 100 U. S., 483) the following is quoted with approval from a speech' 
delivered in the House of Representatives by William Pinkney, of Maryland : 

The word " treaties " ia nomen generalissimum and will comprehend commercial 
treaties, unless there be a limit upon It by which they are executed. It is the appella- 
tive, which will take in the whole species, if there be nothing to limit its scope. There 
is no such limit. There is not a syllable in the context of the clause to restrict the 
natural import of its phraseology. The power is left to the force of the generic term 
and is therefore as wide as a treaty-making power can be. It embraces all the varieties 
of treaties which it could be .supposed this Government could find it necessary or proper 
to make, or it embraces none. It covers the whole treaty-making ground which this 
Government could be expected to occupy, or not an irich of it. 

It is a just presumption that it was designed to be coextensive, with all the exigencies 
of our affairs. Usage sanctions that presumption — expediency does the same. The 
omission of any exception to the power, the omission of the designation of a mode by 
which a treaty not intended to be included within it might otherwise be made, conrirms it. 

Ueliance is placed upon the language of Justice Field in Geofrov v. Riggs 
(138 U. S., 258-267), as follows: 

The treaty power, as expressed in the Constitution, is in terms unlimited except by 
those restraints which are found in that instrument against the action of the Govern- 
ment or of its departments, and those arising from the nature of the Government itself 
and of that of the States. It would not be contended that it extends so far as to 
authorize what the Constitution forbids, or a change in the character of the Govrnment 
or in that of one of the States, or a cession of any portion of the territory of the 
latter, without its consent. 

Which is followed by this sentence : 

But with these exceptions it is not perceived that there is any limit to the questions 
which can be adjusted touching any matter which is properly the subject of negotiation 
with a foreign country. 

With much diffidence, but with the utmost confidence, I venture to assert 
that the territory of a State may either in whole or in part be ceded under the 
treaty power without its consent, though the dictum of the learned justice is 
supported by the authority of other great names. Had Mexico listened to the 
lure of the Zimmermann-Eckhardt note, joined her fortunes with those of 
Germany in an effort to regain the " lost provinces," and under the stern 
compulsion of a dictated peace following a decisive victory of AVilhelm and 
his allies, a treaty was signed by the President and ratified by the Senate 
ceding to Mexico Texas, New Mexico, and Arizona, can anyone doubt the 
efficacy of the act to transfer the sovereignty over that imperial domain to our 
prudent neighbor to the south which wisely ignored the invitation? Would 
it be asserted, for instance, that thereafter a Federal court could continue to 
function within the region affected ; that United States revenue officers could 
continue to discharge their duties therein as theretofore ; and that their acts 
would be recognized by our courts as valid because the treaty was without 
constitutional warrant? Could the Secretary of the Interior be mandamused 
to issue a patent to lands therein to one otherwise becoming entitled to it? 
To my mind, it is of no consequence that the President and the Senate may 
have yielded their assent in order to save from subjection the remainder of the 
country or to preserve it from desolation. Manifestly an overweening necessity 
must be assumed to imagine such an exercise of the treaty-making power, but 
who is to judge of the necessity ; who shall say when conditions are sufficiently 
grave to justify such a treaty? Obviously not the courts, and equally obvious 
is it that the determination rests with the President and the Senate. 



TREATY BETWEEN THE UNITED STATES AND FRANCE. 17 

What good reason is there to doubt that an exchange might be effected by 
treaty of islands lying off our coast, one being within the jurisdiction of one of 
the States of the Union, but devoted wholly to national uses, the other more 
suitable to our purposes belonging to the other party to the treaty? Assume 
the case of two islands in Puget Sound or the Strait of San Juan de Fuca, 
both uninhabited, the one a part of the State of Washington, and consequently 
of the United States, and tlie other within the jurisdiction of British Columbia. 
She is willing to exchange, and the National Government is desirous of acquiring 
her island with a view to devoting it to the better protection of that coast against 
an enemy or some purpose connected with the safer navigation of those waters. 
Can the State of Washington veto the transfer? It is unreasonable that she 
should ; but is the rest of tlie country at the mercy of her whim ? If the 
island were densely populated and the inhabitants adverse to going under 
foreign dominion, in all reasonable probability the President and the Senate 
would yield unhesitatingly to their desires. But that aspect of the case presents 
the question of the wisdom or justice of making and not to the power to make 
the treaty. 

AVithout attempting to specify, I may say that considerations similar tO' 
those here advanced have led statesmen and jurists of no less eminence than 
those announcing a contrary view to the conclusion that under the treaty-making 
power even the territory of one of the States of the Union may be transferred 
to a foreign power. 

In the adjustment of the northeast boundary dispute the formal assent of 
Maine and Massachusetts was secured, not because of the surrender of terri- 
tory over which they asserted jurisdiction, for Massachusetts could claim none, 
but because they owned in common lands within the region which under the 
Webster-Ashburton treaty went to New Brunswick, as will appear from the 
speech of Mr. Webster in justification of the compromise, made on his reentry 
into the Senate. 

This particular inquiry is in the nature of a digression from the general 
subject. It has been followed to perhaps unpardonable length only to make 
more clear the very comprehensive character of the treaty-making power con- 
ferred by the Constitution. 

But, whatever the limitations on the treaty-making power may be, they 
obviously do not embrace undertakings such as article 10 of the covenant. In 
effect, as pointed out, a treaty of alliance under which the United States is 
obligated to go to the aid of any member of the league attacked by another 
nation contrary to the covenant. Alliances were, and for centuries had been, 
common among the nations of the earth at the time the Constitution was 
adopted. The right to enter into such inheres in a sovereign independent State. 
The Representatives of the United States in Congress assembled having pro- 
claimed, in the Declaration of Independence, that the Colonies are, and of 
right onght to be, free and independent States, continued, that as such " they 
have full power to levy war, conclude peace, contract alliances," and " do all 
other acts and things which independent States may of right do." 

An alliance in international law is — 

A nnion or association of two or more States or nations, formed by league or treaty, 
for the joint prosecution of a war or for their mutual protection in repelling hostile 
attacks. (Blacli's Law Dictionary.) 

Bouvier has the following definition of the term and comment thereon : 

In international law : A contract, treaty, or league between two or more sovereigns 
or States made for purposes of aggression or defense. ^ , ^ , ^ „ . 

Defensive alliances are those in which a nation agrees to defend her ally in case 
the latter is attacked. Ofitensive alliances are those in which nations unite for the purpose 
of making an attack or jointly waging war against another nation. 

A modern writer on international law says : 

Alliances in the strict sense of the term are treaties of union lietwecn two or more 
States for the purpose of defending each other against an attack in war or jointly 
attacking third States or for both purposes. — Oppenheim. 

It is inconceivable that the founders of our Government should, at its birth, 
specifically assert the right of the United States as an independent Nation to 
contract alliances and that they then contrived a constitution which disabled 
the Nation from so contracting. As is well known, having declared their right 
so to do, they proceeded without delay to enter into a treaty of alliance with 

S. Kept. 215, 66-1 2 



18 TREATY BETWEEN THE UNITED STATES A17D FRANCE. 

France. Some provisions of this treaty are interesting in tliis connection 
Article 1 is as follows : 

If war should break out between France and Great Britain during the continuance of 
the present war between the United States and England, His Majesty'and the said United 
btates shall make it a common cause and aid each other mutually with their good offices 
and feUMul allies ' ^^'^"^'^^^^ ^° t^<^ exigence of conjunctres as bfcomes good 

Article 8 as follows: 

Neither of the two parties shall conclude either truce or peace with Great Britain 
without the formal consent of the other first obtained ; and they mutually engao-e not to 
lay down their arms until the independence of the United States shall have been formallv 
or tacitly assured by the treaty or treaties that shall terminate the war. 

Article 11, in part, as follows : 

The two parties guarantee mutually from the present time and forever against all 
powers, to wit : The United States to His Most Christian Majesty, the present possessions 
of the Crown of France in America, as well as those which it may acquire by the future 
treaty of peace. And His Most Christian Majesty guarantees on his part to the United 
States their liberty, sovereignty, and independence. (I Treaties and Conventions dd 
480-481.) ' ^ 

This treaty was in full force and vigor at the time the Constitution was 
drafted and adopted. It gave rise to universal i-ejoicing at the time it was 
effected and retained, when the convention was engaged in its labors and through- 
out the stormy period that preceded the adoption of the Constitution, a high 
place in popular favor. The excesses of the French Revolution which followed 
speedily were largely responsible for the determiuation later arrived at and 
concurred in by nearly all our leading statesmen, to disregard some of its obliga- 
tions, speedily condoned by France, which in a spirit of continued amity and 
with a quickened sense of a common interest ceded Louisiana to our country 
under Napoleon. There is no doubt that it was the distressing experience we 
had had with this treaty with France that led Washington to warn his country- 
men in his Farewell Address against " entangling alliances." It will be re- 
membered that in the same connection he descanted upon the unwisdom of 
entertaining either excessive love or excessive hatred toward any nation, having 
in mind the prevailing intensity of feeling with regard to France on the one 
hand and Great Britain on the other growing out of the War for Independence. 

It is unnecessary to say that if in the opinion of Washington, and Hamilton, 
it might be added, for the latter undoubtedly collaborated in the preparation of 
the address, the treaty-making power did not, under the Constitution, extend 
to alliances, offensive or defensive, or both, there would have been no occasion 
to give the warning of which so much has been heard in this debate. The 
revered statesman, who was president of the convention which framed the Con- 
stitution, would have contented himself with an admonition to observe scrupu- 
lously the fundamental law, and a reminder to his readers that it forbade 
treaties of alliance. 

He * * * * * * 

Article 10 is unassailable on constitutional grounds. In its substantive part 
it is to all intents and purposes a treaty of alliance. It concludes, " In case of 
any threat or danger of such aggression the council shall advise upon the means 
by which this obligation shall be fulfilled." The purpose of this clause is obvi- 
ously to secure concert of action, but it is left to each nation to determine for 
itself, the recommendation of the council notwithstanding, whether the occasion 
calls for action in fulfillment of its obligation and how that obligation ought to 
be discharged. 

Under article 16 each member undertakes that it will, should any other resort 
to war in disregard of articles 12, 13, or 14, immediately interdict all trade or 
financial relations with the nations of the covenant-breaking State — that is, insti- 
tute a complete embargo against the offending State. In such a case it becomes 
the duty of the council to " recommend to the several Governments concerned 
what effective military and naval forces the members of the league shall sev- 
erally contribute to the armaments of forces to be used to protect the covenants 
of the league," the obligation to make war in such case arising, if at all, by 
virtue of the covenant of article 10. Again, the only power the council has in 
the premises is to recommend what contribution each nation should make, that a 
recalcitrant may be reduced should a resort to anns be necessary. 



TKEATY BETWEEN THE UNITED STATES AND FRANCE. 19 

NO DELEGATION OF AUTHORITY TO DECLARE WAR. 

A careful study of the covenant will reveal that neither the council nor the 
assembly has any power to declare war or even to call upon the members to make 
war, unless the authority to issue such a call and the obligation to respond is 
implied in the first section of article 11, as follows : 

Any war or threat of war, whether immediately affecting any of the members of the 
league or not, is hereby declared a matter of concern to the whole league, and the league 
shall take any action that may be deemed wise and effectual to safeguard the peace of 
nations. 

At most the laugaiage quoted can not be construed to grant any more 
extensive authority than is reposed in the council under article 10 should a 
war of aggression be prosecuted by a member of the league, namely, to advise 
upon the means by which it is to be suppressed. Even if authority were 
reposed in either assemblage of league representatives to determine whether 
the obligation of article 10 had become active, and that it must be discharged 
by war against the offending State, there could be no valid objection to the 
covenant on constitutional grounds, for the various clauses through which 
such power would be granted would amount only to a covenant to make war 
whenever the league should determine as a fact that through external aggres- 
sion the territorial integrity or political independence of a member was threat- 
ened. In any case there is no delegation of authority to the league to declai'e 
war or to make any order or proclamation as a result of which a state of war 
with all its consequences, like the suspension of all commercial intercourse, 
M'ith which we have become familiar, immediately follows. A declaration of 
war by Congress is indispensable to put this country in a state of war unless 
actually attacked. The league covenant is a treaty by which our country 
binds itself at most to take the necessary steps to engage in war when the 
league determines that the occasion has arisen when, under the treaty, it 
should do so. This was recognized by the junior Senator from Washington in 
that part of one of his forceful addresses in which he assailed the league as 
being violative of the Constitution. But, he asserted, the action of Congress 
in such case would be perfunctory, there would be no escape from the 
obligation of the treaty " but in repudiation and dishonor." He is quite right. 
AVhen by the treaty with France our country agreed to pay $15,000,000 for 
Louisiana, Congress was called upon perfunctorily to make the necessary appro- 
priation. It could not in honor canvass the wisdom or the unwisdom of the 
purchase. The treaty obligated us to enact the necessary legislation. There 
was no escape from that obligation but in repudiation and dishonor. Similarly 
when by treaty we acquired Florida, Congress was called upon perfunctorily 
to make the necessary appropriation. And so with each successive acquisition 
of territory by treaty involving the payment of money — the purchase of Alaska 
and the Philippines, by way of illustration. 

The Senator is right that there would be no escape from the obligation of 
the treaty but in repudiation and dishonor. But if he is correct in the view for 
which he contends, that the whole plan is violative of the Constitution, or is so 
violative in the particular feature involved in any transaction, there would 
be neither repudiation nor dishonor in declining to observe its terms. There 
is neither dishonor nor discredit in a man's declining to pay a promissory note 
executed in his name by one who never was authorized by him to make such 
an instrument. 

FURTHER GROUNDS OF ATTACK CONSIDERED. 

It Avould be gathered from much that has been said upon this subject that the 
league was to assume control of tbe whole subject (of armaments), increasing 
or authorizing an increase in the case of any nation at will, reducing or pre- 
scribing a reduction at its pleasure. Before attempting to consider how griev- 
ously the Constitution is disregarded in this particular it will be well to have 
in mind what authority is conferred. 

The league is authorized to propose a plan for the reduction of armaments, 
which becomes operative when approved by the nations affected. They all 
agree, assuming all approve the plan, to reduce accordingly. This is the volun- 
tary act of each government. Then each agrees not to increase so as to exceed 
the" limit agreed upon without the permission of the league ; that is, l)eyond a 
further limit to be fixed by the council. The only reason urged against the 
constitutionality of these provisions is that as Congress is given power to " raise 
and support armies" and "to provide and maintain a navy," the stipulation is 
an invasion of the exclusive power of Congress. But if it has not been demon- 
strated beyond cavil or controversy that it is no valid objection to a treaty 



20 TEEATY BETWEEN THE UNITED STATES AND FRANCE. 

that it deals with a subject as to which Congress is given power to legislate this 
feeble effort has been all in vain. 

Some suggestion has been made to the effect that the mandatory provisions 
run counter to the Constitution, but in what particular is left vague. There is 
no longer any doubt of the right of our Government to acquire new territory and 
to govern it. If we can exercise complete sovereignty over new lands for all 
time, it will be difficult to establish that we can not exercise a limited sover- 
eignty for a limited time. Then it is offered that aricle 20, by which each signa- 
tory stipulates that it will not enter into a treaty inconsistent with the covenant, 
is void, because otherwise the treaty-making power would be limited. That con- 
dition arises in the case of every treaty made with two or more powers. In the 
case of every such treaty no new compact could be made with either or any of 
the other signatory powers inconsistent with the general treaty, without violat- 
ing it as to the party not participating in the later treaty. In effect the conten- 
tion is that the United States may not enter into a treaty with two or more 
States. 

Finally, i*eferring to the dictum of Mr. Justice Field, quoted above, to the 
effect that the treaty -making power is not so extensive as to justify a treaty 
which makes, a change in the character of the Government, it is urged that by 
reason of the large powers with which the league is invested the United States 
is transformed from an independent nation into a constituent subject member of 
a " supersovereignty " or " superstate." This is mere declamation. It may be 
said in passing that this particular limitation, pointed out by the learned jus- 
tice, does not arise by reason of any peculiarity of the Constitution of this 
country. Such a limitation is implied in the case of the representatives of every 
nation to whom is intrusted the treaty-making power. Clemenceau could no 
more, through a treaty with some other power, transform France from a Repub- 
lic into a monarchy than Wilson and the Senate could accomplish a like result 
as to the United States. 

What are these " vast powers " that are conferred upon the league? I shall 
omit those which are arbitral in character, assuming that no one in this day 
will assert that the United States may not, consistently with the Constitution, 
enter into treaties of arbitration or that, in setting up a tribunal of arbitration, 
it surrenders any part of its sovereignty, or that it is in any sense violative of 
the Constitution to agree, on its part, faithfully to carry out the judgment and 
order of the arbitrator or arbitrators in the matter submitted. 

By article 4 it is provided : 

The council may deal at its meetings with any matter within the sphere of action 
or affecting the peace of the world. 

But it is given no power to do anything. Obviously this clause merely 
charges the league with the duty of considering, advising, and recommending. 
To a certainty, our Government has not bound itself by that clause to do any- 
thing as it has, for instance, by article 10. That clause is clearly intended to 
make the league a forum in which the representatives of the various powers 
would be brought together to adjust differences that might result in war. 

By article 8 the league is authorized to formulate plans for a reduction of 
armaments, the only power given to it, as heretofore pointed out, being to 
grant to any country after the plan has been adopted, authority to exceed the 
limit thereby fixed, a unanimous vote being required for the authorization. 

By article 10 the league, through the council, " shall advise upon the means 
by which the obligation " into which the members enter shall fulfill the obliga- 
tion thereby undertaken, namely, " to respect and preserve as against e:fcternal 
aggression the territorial integrity and political independence of all members of 
the league." 

Article 11 provides : 

Any war or threat of ^^ar, whether immediately affecting any of the members of the 
league or not, is hereby declared a matter of concern to the whole league, and the 
league shall take any action that may be deemed wise and effectual to safeguard the 
peace of nations. 

But what action can it take other than to endeavor to compose, to advise, 
or recommend? The league has no army to make war; it has no treasury to 
meet the expenses of war. It can not initiate a blockade, nor even lay an 
embargo. No nation has bound itself by any provision of the covenant to 
observe any directions that may be given it in the premises by the league or 
to follow any recommendations it may make. The same article provides : 

It is also declared to be the fundamental right of each member of the league to 
bring to the attention of the assembly or of the council any circumstance whatever 
affecting international relations which threaten to disturb either the peace or the good 
understanding between nations upon which peace depends. 



TREATY BETWEEN THE UNITED STATES AND FRANCE. 21 

Tlie observations made apply equally to these provisions. 

By article 13 the members agree to submit international controversies to 
arbitration. " In the event of failure " on the part of any nation which has 
thus submitted a controversy in which it is interested to carry out the award 
made, " the council shall propose what steps should be taken to give effect 
thereto." As no nation has ever declined or omitted to comply with an award, 
this duty is not likely to be burdensome, but all the league can do in the 
premises is to " propose " the steps to be taken in order to give effect to the 
award. The very term used implies that the nations affected may or may not 
take the steps proposed. None of them agree to do so or to take any steps 
at all. 

Article 14 authorizes the league to set up a permanent court of international 
justice, which may or may not be resorted to by any of the powers and which 
may be called upon for an opinion by the league. 

By article 16 the council is authorized to recommend to the several govern- 
ments concerned what effective military or naval forces the members of the 
league shall severally contribute to the armaments of forces to protect the 
covenants of the league should any member make war in disregard thereof. It 
may do likewise under article 17 should a nonmember resort to war against a 
member, the latter declining to accept special membership in the league for the 
consideration of the controversy, or, having done so, malsing war in violation 
of the covenant. 

By article 22 the league assumes a supervisory control over new governments 
brought into being by the treaty and over the German colonies and other regions 
similarly situated, incapable of governing themselves, and undertakes to govern 
them, respectively, through members willing to iindertake the task. 

If full governmental authority may be exercised for all time over newly 
acquired territory consistently with the Constitution, how can it be doubted that 
a limited authority may be exercised for a limited time over regions not now a 
part of our possessions. 

Article 23 speaks for itself, as follows : 

Art. 23. Subject to and in accordance with the provisions of international conven- 
tions existing or hereafter to be agreed upon, the members of the league (a) will endeavor 
to secure and maintain fair and humane conditions of labor for men, women, and chil- 
dren both in their own countries and in all countries to which their commercial and 
industrial relations extend, and for that purpose will establish and maintain the neces- 
sary international organizations; (6) undertake to secure just treatment of the native 
inhabitants of territories under their control ; (c) will intrust the league with the general 
supervision over the execution of agreements with regard to the traffic in women and 
children and the traffic in opium and other dangerous drugs ; (d) will intrust the league 
with the general supervision of the trade in arms and ammunitions with the countries in 
which the control of this traffic is necessary in the common interest ; (e) will make provi- 
sion to secure and maintain freedom of communication and of transit and equitable treat- 
ment for the commerce of all members of the league. In this connection the special neces- 
sities of the regions devastated during the war of 1914-1918 shall be in mind; (f) will 
endeavor to take steps in matters of international concern for the prevention and con- 
trol of disease. 

It is idle to assert that an organization thus equipped is a government at all. 
It has no army and no treasury, and no means of securing either. It is not 
even invested with authority to appoint a commander in chief, should the 
nation members, in accordance with the terms of the covenant, take the field to 
force observance by a recalcitrant or to repel an attack made in violation of 
article 10. Though it may render decisions, it can not make laws, neither 
can it levy taxes. It deals with States as entities — not with individuals — nega^ 
living the idea that it is a government, according to Alexander Hamilton, who 
said, in urging the adoption of our Constitution : 

TVe must resolve to incorporate into our plan those ingredients which may be con- 
sidered as forming the characteristic difference between a league and a government ; we 
must extend the authority of the Union to the persons of our citizens — the only proper 
objects of government. (Federalist, No. 15.) 

It may pass in tliis Chamber or on the hustings, but it is ventured that there 
is not a lawyer among us who would have the hardihood to contend before the 
Supreme Court of the United States, in a proceeding to enjoin the expenditure 
of public funds to pay the salaries of our league representatives, or in some 
other cause in which the question might properly be raised, that the coA'enant 
is void because in the language of Justice Field, it effects " a change in the 
character of the government." Incidentally it may be remarked that no treaty 
has ever been lield, by the Supreme Court, to be violative of the Constitution, 
either in whole or in part. * =s= * 



EXCERPTS FROM THE SPEECH OF SENATOR FRANK B. KELLOGG, 
OF MINNESOTA, IN THE SENATE ON AUGUST 7, 1919. 

Treaty-Making Power and the League of Nations. 

Mr. Kellogg. Mr. President, it is my intention at this time to address myself, 
at least partially, to the resolution heretofore submitted by the Senator from 
Montana [Mr. Walsh], calling upon the Judiciary Committee of the Senate 
for an expression of opinion as to the constitutionality of the proposed treaty 
of alliance with France ; and as that treaty embraces in principle the same 
questions as are involved in the league of nations, I beg leave of the Senate to 
submit some observations upon that question. 

I shall at this time discuss two propositions : First, whether the league of 
nations is within the treaty-making power of the President and the Senate 
under the Constitution of the United States ; and, second, whether reservations 
in and amendments of the covenant are necessary to protect the United States. 

As an appndix to my remarks I ask to have printed in the Record some 
reservations which have been prepared by certain Senators as suggestions in 
relation to the pending treaty. 

The Vice President. In the absence of objection, it is so ordered. 

[The matter referred to will be found in Appendix A at the conclusion of Mr. 
Kellogg's speech.] 

Mr. Kellogg. Mr. President, the covenant of the league of nations has been 
before the people of the United States for practically six months. It has prob- 
ably been discussed in the Senate, in the forum of the people, and in the press 
of the country more than any instrument ever submitted since the Jay treat3^ 
I believe every Senator has made up his mind how he intends to vote. 

The peace treaty, the most momentous document ever submitted to any body, 
has been before the Committee on Foreign Relations nearly a month ; and, 
while I am making no criticism of that committee, I am stating what I believe 
to be the public sentiment of this country when I say that there is a strong 
desire that this treaty and the league of nations covenant, bringing an end of 
this war, shall be disposed of at the earliest possible moment. The Nation has 
made great sacrifices ; its sons have given their lives upon the fields of France ; 
industry and commerce have been disarranged ; the people wish this issue 
settled and that our attention be turned to the economic problems which al- 
ways follow a great world convulsion such as we have passed through. 

I should not take the time of the Senate to discuss even these questions were 
it not for the fact that the peace treaty is still before the Foreign Relations 
Committee, and there is no legislation immediately pending before the Senate, 
since it is now being considered in the committees of Congress. 

I am aware that the discussion of a constitutional question is a very dry sub- 
ject and interests very few people, but I take it that no Senator desires or 
would for one moment think of voting for a treaty that he believes to be beyond 
the constitutional power of the Government simply because it would do no harm. 

From an examination of the speeches made by certain Senators and from 
declarations in the press I assume that the provisions of the covenant which 
are declared to be in violation of the Constitution are: 

Article 8, providing for the reduction of national armaments, and stipulating 
that the manufacture by private enterprise of munitions and implements of war 
is open to grave objection ; 

Article 10, providing that members of the league agree to respect and pre- 
serve as against external aggression the territorial integrity and existing po- 
litical independence of all members of the league ; 

Article 11, providing that any war or threat of war shall be a matter of con- 
cern to the whole league, and that the league shall take any action that may be 
deemed wise and effectual to safeguard the peace of nations ; 

Article 16, providing that any member of the league resorting to war in 
disregard of its covenants under certain articles shall suffer the severance of all 

22 



TREATY BETWEEN THE UNITED STATES AND FRANCE. 23 

trade or financial relations and the prohibition of all intercourse by its na- 
tionals ; and 

Other provisions of the covenant providing for mandates in relation to the 
freedom in transit and equitable treatment of commerce. 

I shall not now discuss the wisdom of these provisions — whether they should 
be amended or wliether, if the treaty is ratified, certain reservations should be 
made which we believe will protect this country, although, perhaps, I ought to 
say that one of those questions I shall later consider in the course of my remarks. 
The immediate question, however, to which I now invite attention is the con- 
stitutional power of this Government to agree to respect or to guarantee the 
independence of any country or agree to the limitation of armament or make- 
a treaty containing provisions which may affect our trade and commerce. 

SOURCE AND SCOPE OF TREATY-MAKING POWER, 

When the Constitution of the United States Avas adopted the treaty-making^ 
power was conferred upon the President and the Senate. The provisions of the 
Constitution are as follows : 

No State shall enter into any treaty, alliance, or confederation. * * * (^j-t I. 
sec. 10, cl. 1.) 

No State shall, without the consent of Congress, * * * enter into any agreement 
or compact with another State or with a foreign power. * * * (Art. I, sec. 10, cl. 2.) 

He (the President) shall have power, by and with the advice and consent of the Senate, 
to make treaties, provided two-thirds of the Senators present concur. * * * (Art. II, 
Bee. 2, cl. 2.) 

The judicial power shall extend to all cases, in law and equity, arising under this 
Constitution, the laws of the United States, and treaties made, or which shall be made, 
under their authority. * * * (Art. Ill, sec. 2, cl. 1.) 

This Constitution, and the laws of the United States which shall be made in pursuance 
thereof ; and all treaties made, or which shall be made, under the authority of the United 
States, shall be the supreme law of the land ; and the judges in every State shall be bound 
thereby, anything in the constitution or laws of any State to the contrary notwith- 
standing. (Art. VI, cl. 2.) 

In this broad grant of power there is embodied no definition of the subjects 
embraced within the treaty-making power. It may, therefore, be accepted that 
the people of the United States intended to confer upon the Federal Govern- 
ment no less power than was at the time exercised and enjoyed by other nations. 
In fact, not only by practice, but by authority, the treaty-making power has 
been held to embrace all those subjects which it has been the practice and 
custom of nations to exercise. These include treaties of alliance, both offensive 
and defensive; guaranties of political independence and territorial integrity; 
agreements as to colonies ; agreements to neutralize territories and nations ; 
treaties affecting the status of foreign citizens in this country, their right to 
engage in business, to own, transfer, and inherit property ; questions of cus- 
toms and duties, navigation of rivers, lakes, and internal waterways ; the limi- 
tation of armament ; the acquisition of territory ; the settlement and payment 
of damages ; and other subjects too numerous here to mention. 

The men who framed the Constitution were versed in the history and practice 
of nations and in international law. They were students of government. Had 
it been intended to limit the sovereign power of the United States in the exer- 
cise of the usual treaty-making rights such restrictions would have been stated 
in the Constitution. In fact, in limiting the States it was provided that they 
should not enter into any treaty, alliance, or confederation, but no limitation 
was placed in the Federal Constitution. It is impossible for me to recite to 
the Senate the declarations of the statesmen of that time in the formation of 
the Constitution and its adoption by the several States or the discussions which 
early in the history of this Government dwelt upon the treaty-making power. 
But those discussions make it perfectly clear that the Constitution was intended 
to confer upon the Federal Government the same general treaty-making power 
exercised by other nations, limited only by the express provisions of our Con- 
stitution. Furthermore, from the very inception of our Government to the pres- 
ent time Ave have placed a practical construction upon this poAver, and the Su- 
preme Court of the United States has held that where there exists ambiguity or 
doubt, or Avhere tAA^o vieAvs may Avell be entertained, contemporaneous and prac- 
tical construction of constitutional powers are entitled to the greatest weight. 
(McPherson v. Blacker, 146 U. S., 1; KnoAvlton v. Moore, 178 U. S., 41.) 

"treaty of alliance AVITH FRANCE, 1778." 

At the time the Constitution was adopted it Avas the practice of nations to 
enter into treaties of alliance, offensive and defensive ; guarantee countries 
against internal aggression ; enter into treaties of commerce affecting duties on 



24 TEEATY BETWEEN THE UNITED STATES AND FRANCE. 

exports as well as imports and regulating other phases of commerce ; fixing the 
status of foreign citizens and defining their property rights ; acquire territory or 
colonies ; and exercise various other treaty-making powers. In fact, before our 
Constitution was adopted and during the struggle for independence the Confed- 
eration of States entered into a treaty with France for an offensive and defensive 
alliance. Article 1 of this treaty provided as follows : 

If war should break out between France and Great Britain during the continuance of 
the present war between the United States and England, His Majesty and the said 
United States shall make it a common cause and aid each other mutually mth their good 
offices, their counsels, and their forces, according to the exigence of conjunctures, as 
hecomes good and faithful allies. 

Article 8 provides as follows : 

Neither of the two parties shall conclude either truce or peace with Great Britain 
■without the formal consent of the other first obtained ; and they mutually engage not 
to lay down their arms until the independence of the United States shall have been 
formally or tacitly assured by the treaty or treaties that shall terminate the war. 

Article 11, in part, provides as follows : 

The two parties guarantee mutually from the present time and forever against all 
powers, to wit, the United States to His Most Christian Majesty, the present possessions 
of the Crown of France in America as well as those which it may acquire in the future 
treaty of peace. And His Most Christian Majesty guarantees on his part to the United 
States their liberty, sovereignty, and independence. 

This treaty was in existence until 1798 and subsisted after the adoption of the 
Constitution. Hamilton, in his letters discussing the treaty-making power under 
the Federation and under the Constitution, referred to this treaty as an evidence 
of the power granted by the Constitution of the United States to enter into a 
treaty of alliance. Among other things, he said : 

The manner of exercising a similar power under the confederation shall now be ex- 
amined. 

To judge of the similarity of the power it will be useful to quote the terms in which it 
was granted. They are these : " The United States in Congress assembled shall have the 
•sole and exclusive right and power of entering into treaties and alliances: Provided, 
That no treaty of commerce shall be made whereby the legislative power of the respective 
States shall be restrained from imposing- such imposts and duties on foreigners as their 
own people are subject to, or from prohibiting the importation or exportation of any 
species of commodities whatsoever." 

It will not be disputed that the words " treaties and alliances " are of equivalent 
import and of no greater force than the single word " treaties." An alliance is only a 
species of treaty, a particular of a general ; and the power of " entering into treaties," 
which terms confer the authority under which the former Government acted, will not be 
pretended to be stronger than the power " to make treaties," which are the terms consti- 
tuting the authority under which the present Government acts ; it follows that the power 
respecting treaties under the former and that under the present Government are similar. 
******* 

Under this power thus granted and defined the alliance with France was contracted, 
guaranteeing, in the case of a defensive war, her West India possessions, and when the 
casus faederis occurs obliging the United States to make war for the defense of those 
possessions, and consequently to incur the expenses of war. 

Under the same power treaties of commerce were made with France, The Netherlands, 
Sweden, and Prussia. Besides that, every treaty of commerce is necessarily a regulation 
of commerce between the parties, it has been shown, in the antecedent comparison of those 
treaties with that lately negotiated, that produce the specific effects of restraining the 
legislative power from imposing higher or other duties on the articles of those nations 
than on the like articles of other nations, and from extending prohibition to them which 
shall not equally extend to other nations the most favored ; and thus abridge the exercise 
of the legislative power to tax and the exercise of the legislative power to regulate trade. 

JAY TREATY, 1794. 

During the time the Constitution was pending before the conventions of the 
various States for adoption much of the objection to the Constitution emanated 
from the extensive treaty-making power conferred upon the Pre.sident and the 
Senate. All 'students of history will recall the storm of opposition and public 
indignation which swept over the country when the terms of the Jay treaty, 
proclaimed February 29, 1796, between Great Britain and the United States 
were made public. All of the latent opposition to the Constitution was fanned 
into a fiame and public meetings were held all over the country, at which the 
treaty was denounced. It was assailed in almost every aspect as being beyond 
the constitutional power of the President and the Senate. 

It brought forth from Washington, Hamilton, Ellsworth, and many others 
who were familiar with the history of the formation of the Constitution and 
the grant of the treaty-making power the most illuminating and the ablest 
discussion upon this subject anywhere recorded in history. 



TREATY BETWEEN THE UlTITED STATES AND FRANCE. 25 

Hauiiltoii defended the treaty-makin;;- power in a series of letters over the 
si.cnatnre of " Camillus," which for historical knowledge and power of logic 
have never been transcended. They stand as the last great monument to his 
fame. A brief summary of these objections may be useful : 

It was alleged that the Jay treaty restricted the power of Congress to lay 
taxes or exact higher duties upon commodities; the power to regulate trade; 
the power to establish miiform naturalization ; to define and punish piracies 
and felonies; that it violated the provision of the Constitution which declares 
that " no money shall be drawn from the Treasury but in consequence of appro- 
priations made by law " ; that it violated the constitutional power of Congress 
to dispose of and make uniform rules and regulations respecting territory and 
other property of the United States ; that it violated that provision of the Con- 
stitution relating to the judicial department, and in many other respects. 

In discussing these objections, Hamilton said : 

The power of treaty could not but be supposed commensurate with all these objects to 
■which the legislative power of the Union extended, which are the proper subjects of 
compacts with foreign nations. 

In discussing the understanding of the treaty-making power by the conven- 
tion, Hamilton said : 

The manner in which the power of treaty, as it exists in the Constitution, was under- 
stood by the convention in framing it and by the people in adopting it is the point next 
to be considered. 

As to the sense of the convention, the secrecy with which their deliberations were 
conducted does not permit any formal proof of the opinions and views which prevailed 
in digesting the power of the treaty, but from the best opportunity of knowiug the 
fact, I aver that it was understood l3y all to be the intent of the provision to give to 
that power the most ample latitude — to render it competent to all the stipulations 
which the exigencies of national affairs might require ; competent to the making of 
treaties of alliance, treaties of commerce, treaties of peace, and eveiy other species of 
convention usual among nations ; and competent in the course of its exercise for these 
purposes, to control and bind the legislative power of Congress, and it was emphatically 
for this reason that it was so carefully guarded, the cooperation of two-thirds of the 
Senate with the President being required to make any treaty whatever. I appeal for 
this with confidence to every member of the convention, particularly to those in the two 
Houses of Congress. 

In summarizing the arguments of those who objected to the Jay treaty on 
constitutional grounds, he enumerated the various treaties which the United 
States could not enter into if the position of these objectors was correct : 

The absurdity of the alleged interferences will fully appear by showing how they would 
operate upon the several kinds of treaties usual among nations. These may be classed 
under three principal heads: (1) Treaties of commerce, (5) treaties of alliance, (.3) 
treaties of peace. 

Treaties of commerce are, of course, excluded, for every treaty of commerce is a system 
of rules devised to regulate and govern the trade between contracting nations, invading 
directly the exclusive power of regulating trade which is attributed to Congress. 

Treaties of alliance, whether defensive or offensive, are equally excluded, and this on 
two grounds : 

1. Because it is their immediate object to define a case or cases in which one nation 
shall take part with another in war, contrary, in the sense of the objection, to that 
clause of the Constitution which gives to Congress the power of declaring war; and (2) 
because the succors stipulated, in whatever shape they may be, must involve an expendi- 
ture of money — not to say that it is common to stipulate succors in money, either in 
the first instance or by way of alternative. It will be pertinent to observe, incidentally, 
in this place that even the humane and laudable provision in the seventeenth article, 
which all have approved, is within the spirit of the objection, for the effect of this is to 
restrain the power and discretion of Congress to grant reprisals till there has been an 
unsuccessful demand of justice. Nothing can better illustrate the unreasonable tendency 
of the principle. 

Treaties of peace are also excluded, or, at least, are so narrowed as to be in the 
greatest number of cases impracticable. The most common conditions of these treaties 
are restitutions or cessions of territory, on one side or on the other, frequently on both 
sides — regulations of boundary, restitutions and confirmations of property, pecuniary 
indemnifications for injuries or expenses. It will probably not be easy to find a prece- 
dent of a treaty of peace which cloes not contain one or more of these provisions as the 
basis of the cessation of hostilities, and they are all "of them naturally to be looked for 
in an agreement which is to put an end to the state of war between conflicting nations. 

Yet they are all precluded by the objections which have been enumerated : Pecuniary 
indemnifications, by that which respects the appropriations of money ; restitutions or 
cessions of territory or property, regulations of boundary, by that which respects the right 
of Congress to dispose of and make all needful rules and regulations concerning the terri- 
tory and property of the United States. It is to be observed likewise that cessions of 
territory are almost always accompanied with stipulations in favor of those who inhabit 
the ceded territory, securing personal privileges and private rights of property, neither of 
which could be acceded to on the principles of that objection, which relates to the power 
of naturalization, for this power has reference to two species of rights, those of privilege 
and those of property. An act allowing a foreigner to hold real estate is so far an act of 
naturalization, since it is one of the consequences of alienism not to be able to hold real 
estate. 

It follows that if the objections which are taken to the treaty on the point of constitu- 
tionality are valid, the President, with the advice and consent of the Senate, can make 
neither a treaty of commerce nor alliance, and rarely, if at all, a treaty of peace. It is 



26 TREATY BETWEEN THE UNITED STATES AND FRANCE. 

probable that on a minute analysis there is scarcely any species of treaty whicli -would not 
clash in some particular with the principle of those objections, and thus, as was before 
observed, the power to make treaties granted in such comprehensive and indefinite terms 
and guarded with so much precaution would become essentially nugatory. 

******* 

But the construction which is combated would cause the legislative power to destroy the 
power of making treaties. Moreover, if the power of the executive department be inade- 
quate to the making of the several kinds of treaties which have been mentioned, there ia 
then no power in the Government to make them, for there is not a syllable in the Constitu- 
tion which authorizes either the legislative or judiciary departments to make a treaty with 
a foreign nation. And our Constitution would then exhibit the ridiculous spectacle of a 
Government without a power to make treaties with foreign nations, a result as inadmissible 
as it is absurd, since, in fact, our Constitution grants the power of making treaties in the 
most explicit and ample terms to the President, with the advice and consent of the Senate. 
On the contrary, all difficulty is avoided by distinguishing the province of the two powers 
according to ideas which have been always familiar to us, and which were never exposed 
to any questions till the treaty with Great B'ritain gave exercise to subtleties of party 
spirit. 

Chief Justice Ellsworth, who had been a member of the Federal convention 
and whose appointment to the Supreme Bench bears date of March 4, 1796, in 
a carefully prepared letter on the subject, under date of March 13, 1796, ex- 
pressed similar views. He said : 

The grant of the treaty-making power is in these words : " The President, with the 
advice and consent of the Senate, shall make treaties." The power goes to all kinds 
of treaties, because no exception is expressed, and also because no treaty-making power 
is elsewhere granted to others, and it is not to be supposed that the Constitution has 
omitted to vest sufficient power to make all kinds of treaties which have been usually 
made or which the existence or interests of the Nation may require. 

PEECEnENTS AND AUTHORITIES EESPECTING TREATY-MAKING POWER AND SL'B.JECTS. 

We will thus see that the understanding of those who framed and were 
instruniental in adopting the Constitution was that this country had power to 
enter into the usual treaties negotiated by sovereign powers, including treaties 
of alliance, treaties guaranteeing the political independence and integrity of 
foreign nations ; in fact, this country had entered into such a treaty, which 
was in force before the Constitution was adopted and for years thereafter ; 
that from that day to the present time no question has been raised respecting 
the power of this country to negotiate such a treaty. Not only is this supported 
by the best writers on constitutional law, but by the decisions of the Supreme 
Couvt and the practice of this country during the entire life of the Republic. 

Willoughby, recognized as one of the best of the modern authorities on con- 
stirutiona] law, makes the following statement concerning the treaty-making 
po^^•er of the Federal Government : 

The control of international relations vested in the General Government is not only 
exclusive, but all-comprehensive. That is to say, the authority of the United States in 
its dealings with the foreign powers includes not only those powers which the Constitution 
specifically grants it, but all those powers which sovereign States in general possess with 
regard to matters of international concern. This general authority in the United States 
is fairly deducible from the fact that in its dealings with other States the United States 
appear as the sole representative of the American people; that upon it rests, therefore, 
the obligation to perform all the duties which international law imposed upon a sovereiga 
State ; and that, therefore, having these duties to perform it is to be presumed to have 
commensurate powers. (Sec. 190.) 

The power being expressly conferred by the Constitution on the President and Senate 
to make treaties, and there being no bounds set to their power, they are without limita- 
tion, except that they can not violate other provisions of the Constitution or invade the 
other departments of the Government. 

In the case of Ferrioa dos Santos (2 Brock., 493), cited in Second Watson, on 
the Constitution, page 955, it is said : 

The treaty power, as expressed in the Constitution, is in terms unlimited, except by 
those restraints which are found in that instrument against the action of the Government 
or of its departments and those arising from the nature of the Government itself and of 
that of the States. It would not be contended that it extends so far as to authorize what 
the Constitution forbids, or a change in the character of the Government or in that of 
one of the States, or a cession of any portion of the territory of the latter without its 
consent. (Fort Leavenworth Railroad Co. v. Lowe, 114 U. S., 525, 541.) But with these 
exceptions it is not perceived that there is any limit to the questions which can be 
adjusted touching anv matter which is properly the subject of negotiation with a foreign 
country. (Per Field, J., in Geofroy v. Riggs, 133 U. S., 258, 266.) 

In the same opinion it is said : 

That the treaty power of the United States extends to all proper subjects of negotiation 
between our Government and the Governments of other nations is clear. 

In Holmes v. Jennison (14 Pet. U. S., 540) Chief Justice Taney, writing the 

opinion of the court, said : 

The power to make treaties is given by the Constitution in general terms, without 
any description of the objects intended to be embraced by it, and, consequently, it waa 



TREATY BETWEEN THE UNITED STATES AND FRANCE. 27 

designated to include all those subjects which in the ordinary intercourse of nations 
had usually been made subjects of negotiation and treaty and which are consistent with 
the nature of our institutions and the distribution of powers between the General and' 
State Govornments. And without attempting to define the exact limits of this treaty- 
maliing power or to enumerate the subjects intended to be included in it, it may safely 
be assumed that the recognition and enforcement of the principles of public law being 
one of the ordinary subjects of treaties, were necessarily included in the power con- 
ferred on the General Government. * ♦ * Indeed, the whole frame of the Con- 
stitution supports this construction (pp. 569-570). 

In the case of The Cherokee Tobacco (11 Wall., 616) Judge Swayne said, at 
page 620: 

It need hardly be said that a treaty can not change the Constitution or be held valid' 
if it be in violation of that instrument. This results from the nature and fundamental 
principles of our Government. The effect of treaties and acts of Congress, when in 
conflict, is not settled by the Constitution. But the question is not involved in any 
doubt as to its proper solution. A treaty may supersede a prior act of Congress (Foster 
V. Neilson, 2 Pet., 314) and an act of Congress may supersede a prior treaty (Taylor 
V. Morton, 2 Curtis, 454; The Clinton Bridge, 1 Walworth, 155). 

In Holden v. Joy (17 Wall., 243) Clifford, J., said : 

Under the powers given to the President and Senate to make treaties, it must be 
assumed that the framers of the Constitution intended that the power should extend 
to all those objects which in the intercourse of nations had usually been regarded as the 
proper subjects of negotiation and treaty, if not inconsistent with the nature of our 
Government and the relations between the States and the United States. 

In Holmes v. Jennison (14 Pet, 569) it was said: 

The Constitution does not descend to details on the subject of treaties. It confers 
the power upon the President and Senate to make treaties, and this power is conferred 
in general and not specific terms. The power therefore includes all those matters which 
were the subjects of treaty at the time the Constitution was formed, providing they are 
consistent with the nature and provisions of the Constitution. The recognition and 
enforcement of the principles of public law being among the ordinary subjects of treaties 
were of necessity included in the power conferred upon the President and Senate to- 
make treaties. (Cited in 2 Watson on the Constitution, p. 956.) 

It is hardly necessary to enumerate the treaties involving such general pro- 
visions which have been entered into by the United States during its existence 
under the Constitution. Familiar examples are the Rush-Bagot agreement of 
1817 — made by the exchange of notes — whereby the United States and Great 
Britain agreed to limit their naval armament upon the lakes forming the 
boundaries between the United States and Canada. 

The Webster-Ashburton treaty of 1842, whereby Great Britain and the 
United States agreed to maintain a naval force on the coast of Africa for the 
suppression of the slave trade, the forces of the two nations to act in concert 
and cooperation. 

The Clayton-Bulwer treaty of 1850, between Great Britain and the United 
States, relating to the subject of a ship canal between the Atlantic and Pacific 
Oceans, the two nations guaranteeing the neutrality of the canal and under- 
taking to protect it against unjust confiscation, seizure, or violence, and so> 
forth. 

The treaty of 1846 with Colombia, whereby the United States guaranteed 
" positively and efficaciously * * * to perfect neutrality " of the Isthmus 
of Panama, the treaty with Cuba, and the treaty by which we guaranteed the 
Independence of Panama'. 

The treaty of 1889 with Germany and Great Britian respecting the Samoan- 
Islands, and many others. 

The treaties of arbitration are so well known that no reference is necessary. 
The two Hague conventions, the Play treaties made following the first conven- 
tion, and the Root treaties following the second, and, finally, the Bryan treaties 
of 1913 dealt so comprehensively with the whole subject of arbitration as to 
leave no doubt whatever concerning the uniform recognition of the ability of 
the treaty-making power to bind the United States to any form of agreement 
for the peaceful settlement of international disputes, with a corresponding 
covenant not to go to war over the subject of dispute until after the processes^ 
of arbitration or inquiry have been exhausted, so that, upon precedent, upon 
the testimony of the statesmen who framed the Constitution, and in practice 
there can be no doubt as to the power of this Nation to execute such guaranties, 
whatever may be its wisdom. In principle there is no difference between guar- 
anteeing the independence of Panama and guaranteeing the independence of 
Great Britain or France. It is said that we have a proprietary interest in 
Panama on account of the construction of the canal. We have a proprietary 
interest in the canal, and it is to our benefit to have stable government on either 
side of the canal, and so it is to our interest to have stable governments in any- 
country contiguous to the United States or in any part of the world which- 



28 TREATY BETWEEN THE UNITED STATES AND FRANCE. 

might otlierwise threaten our peace. For that reason we practically guaran- 
teed the independence of Cuba. 

If this country had the power to negotiate a treaty of alliance with France — 
and that power has not been questioned for more than a hundred years — the 
power still subsists. 

If we had power to enter into a treaty with Great Britain to limit armament 
upon the Great Lakes — the treaty. with Great Britain, 1817, which power has 
not been questioned for more than a hundred years — we have the same power 
to agree with all nations at this time to limit our armament. ■» 

Another objection to the treaty is that Congress alone can declare war and 
•establish an army and navy ; that therefore it is within the sole province of Con- 
gress to decide whether we will declare war to protect a foreign country or 
whether we will enlist a certain number of men and provide a certain army ; 
that, as the legislative power is alone vested in Congress, only Congress can 
enter into such an agreement ; and that any agreement the violation of which 
might cause war, or any agreement to limit armament which Congress might 
violate, is unconstitutional. This, as Hamilton says, would practically destroy 
the treaty-making power of the United States. 

The argument is as old as the history of treaties in this country. It was pre- 
sented with great ability by the opponents of the Jay treaty and overcome by 
the able statesmen of that time, foremost among whom was Alexander Hamilton. 
From that day to the present time the question has been frequently raised in 
connection with treaties for the payment of money, regulating commerce, fixing 
import duties, regulating rights of trade with foreign countries, fixing bound- 
aries, and various other subjects ; the objection being that as the power to 
legislate in relation to these matters was in the entire Congress, any treaty made 
by the President and the Senate was therefore void. But these objections have 
proved unavailing and a large number of treaties have been made and ratified 
by the Senate where legislation was necessary to carry them into operation. For 
those who desire a more detailed examination of these treaties they will be 
found stated and analyzed in Crandall on Treaties, their making and enforcer 
ment, chapters 12 to 17, inclusive. 

I can not review them all, but let me discuss a few of them : 

The Jay treaty provided for the payment of money, regulated commerce, and 
fixed the status of foreign citizens, their right to hold and inherit property in 
the States, and other like provisions. President Washington took the advice 
of the heads of his administration — of Hamilton and others — and declined to 
submit the treaty to the House of Representatives. 

On March 30, 1796, in his reply to a resolution from the House, President 
AVashington said : 

As, therefore, it is perfectly clear to my understanding that the assent of the House 
of Representatives is not necessary to the validity of a treaty, as the treaty with Great 
"Britain exhibits in itself all the objects requiring legislative provisions, and on these, the 
papers called for can throw no lig"ht, and as it is essential to the due administration of 
the Government that the boundaries fixed by the Constitution between different depart- 
ments should be preserved, a just regard to the Constitution and to the duty of my office, 
under all the circumstances of this case forbids a compliance with your request. 

The treaty with France for the purchase of land at the mouth 6t the Missis- 
sippi, approved May 3, 1802, required an appropriation of $2,000,000. President 
Jefferson submitted the treaty to the Senate alone, and after its ratification, 
asked Congress to make the appropriation. A resolution requesting the Presi- 
dent to submit the papers to the House of Representatives was defeated. 

In the French treaty of Ju.ly 4, 1831, it was agreed to pay to the United States 
'2.5,000,000 francs in settlement of certain claims. The treaty was signed by the 
French Government and the representatives of the United States and ratified by 
the Senate. The Chamber of Deputies of France refused to make the appropria- 
tion. The House of Representatives unanimously adopted a resolution declar- 
ing that in the opinion of the House the convention should be maintained and 
its execution insisted upon. 

So that we ourselves have not only insisted that we have the right to make a 
treaty which is said to circumscribe the legislative or sovereign power of the 
■Government, but we have invoked the same rule against others. 

There are a number of these treaties entered into Avith the United States 
requiring the payment of money which have never been submitted to the Con- 
gress and which have been negotiated by the President and confirmed by the 
'.Senate. A list of these may be found on page 179, Crandall on Treaties, extend- 
ing from 1796 to 1903. 

in treaties involving the modification of revenue laws it has been the universal 
icustom for the President and the Senate to negotiate such treaties, although the 



TREATY BETWEEN THE UNITED STATES AND FRANCE. 29 

power to raise revenue is alone vested in the Congress, and such bills must 
originate in the House. This question was also determined as an incident to 
the Jay treaty. The discussion is very illuminating. John Forsyth, who was 
afterwards Secretary of State, instituted the contention in the Hou.se that legis- 
lation to administer the treaty was necessary, but he made no claim that the 
treaty itself was invalid. His statement is so clear on this question that I beg 
leave to quote therefrom : 

The basis of the bill is not the principle stated, that legislative aitl is necessary to the 
validity of treaties. Gentlemen have exhausted their ingenuity, their time, and their 
eloquence in the discussion of a doctrine utterly denied by the bill and those who ad- 
vocate it. The doctrine contended for is that in certain cases specified by the Constitu- 
tion legislative aid is necessary to the execution of treaties. Is there no difference between 
the two propositions? * * * The distinction between the validity of an instrument 
and the execution of its provisions, between the obligation of contract and the per- 
formance of that obligation ? * * * We insist not that it is the figment or shadow 
of a treaty but that it shall be neither more nor less than a treaty valid and obligatory 
as such as a contract, but not having the force of law in its operation upon the municipal 
concerns of this people without legislative enactment. 

He makes a distinction between the carrying out of a treaty and the making 
of a treaty which is morally binding upon the Congress. 

Heretofore there has been no tribunal in which such treaties could be judged, 
except the tribunal of public opinion. 

The treaties with France in 1822 and 1831 providing for duties on French 
goods admitted into the United States were ratified and then submitted to 
Congress for legislation. But the Senate refused to ratify the treaty with 
the States of the German Zollverein, which changed the duties laid by law. 
Since 1854 many of the treaties affecting import duties contained a proviso 
that the treaty should take effect as soon as laws required to carry them into 
operation should be passed. For instance, in convention with Hawaiian Islands 
of 1875, the Senate advised ratification, " but not until a law to carry it 
into operation shall be passed by the Congress of the United States." A similar 
reservation was made in the reciprocity convention with Mexico of 1883 and 
various other reciprocity conventions subsequently negotiated. 

In the tariff act of October 3, 1913, the President was " authorized and 
empowered to negotiate trade agreements with foreign nations wherein mutual 
concessions are made looking toward^ freer trade relations and further 
reciprocal expansion of trade and comrnerce : Provided, lioioever, That said 
trade agreements before becoming operative shall be submitted to the Congress 
of the United States for ratification or rejection." 

Whatever may be said respecting the propriety of the negotiation of a treaty 
by the President and the Senate which interferes with the tariff acts enacted 
by Congress, the power to negotiate such treaties is settled beyond question. 
My own opinion is that the wisdom of it is doubtful, and as the duty is placed 
upon Congress to raise revenue to support the Government, the treaty-making 
power should not be exercised in such a way as to infringe upon this authority. 
But it has been the practice of this Nation from the inauguration of its Gov- 
ernment under the Constitution to negotiate such treaties and to simply ask 
Congress to pass the necessary legislation to carry them into operation. 

The Supreme Court, in the so-called Insular cases, settled this question. In 
the case of De Lima r. Bidwell (182 U. S., 1) recovery was sought for duties 
paid under protest on goods brought into New York from the island of Porto 
Rico in 1899, after the exchange of ratification of the treaty but prior to any 
legislation by Congress. The court held that upon the exchange of ratification 
of the treaty of April 11, 1899, Porto Rico ceased to be a foreign country 
within the meaning of the tariff laws then existing, and that the duties were 
not legally exacted. 

That, in effect, was a repeal of the tariff laws by this treaty. 

In the Fourteen Diamond Ring case (183 U. S., 176) the same decision was 
reached as to the Philippine Islands. It is true, however, that in the De Lima 
case there was the di.ssenting opinion of four judges, written by Mr. Justice 
White, to the contrary. But the De Lima case has been reaffirmed and must now 
be considered as the settled law of this country. This case was cited and ap- 
proved in Dorr r. United States (195 U. S., 138), and has been cited with ap- 
proval by the Supreme Court since that time. 

Chief Justice White based his dissent upon the ground that it was not good 
policy for the Government to execute a treaty affecting duties, because the re- 
sponsibility for raising revenue to support the Government was placed upon the 
Congress. ' But the court held the question of propriety was for the Senate and 
the iPresident to determine when they made the treaty. Congress clearly reserving 
the right to refuse to carry it out or to repeal the treaty if it saw fit. 



50 TKEATY BETWEEN THE UlSTITED STATES AISTD FEANCE. 

In the latter case Mr. Justice Day, who delivered the opinion of the court, 
said : 

It may be regarded as settled that the Constitution of the United States is the only 
source of power authorizing action by any branch of the Federal Government. " The 
<3ovei-nment of the United States was born of the Constitution, and all powers which it 
enjoys or may exercise must be either derived expressly or by implication from that instru- 
ment." (Downes V. Bidwell (182 U. S., 244, 288) and cases cited. It is equally well 
settled that the United States may acquire territory in the exercise of the treaty-making 
power by direct cession as the result of war and in making effectual the terms of peace, 
and for that purpose has the powers of other sovereign nations. This principle has been 
recognized by this court from its earliest decisions. The convention which framed the 
Constitution of the United States, in view of the territory already possessed and the pos- 
sitiility of acquiring more, inserted in that instrument, in Article "IV, section 3, a grant of 
express power to Congress " to dispose of and make all needful rules and regulations 
respecting the territory or other property belonging to the United States." 

There is no question that the power to acquire territory, to fix boundaries and 
the status of the inhabitants, and to cede territory has not only been exercised 
many times by this Government, but has been sustained as a part of the treaty- 
making power by the Supreme Court of the United States. 

The Senator from Pennsylvania, in his speech of March 1, objects to certain 
articles of the treaty relating to finance and economy because the power to 
legislate upon interstate commerce is vested in Congress. This same objection 
was made to the Jay treaty and was met by the President and by many of the 
proponents of the treaty, conspicuous among whom was Alexander Hamilton. 
Hamilton said : 

This will the better appear from the entire clause. " The Congress shall have powei.* 
to regulate commerce with foreign nations and among the several States and with the 
Indian tribes," which is the same as if it had been said : The whole powers of regulating 
trade by law shall reside in Congress, except as to the trade within a State, the power to 
regulate which shall remain with such State. But it is clearly foreign to that mutual 
regulation of trade between the United States and other nations, which, from the neces- 
sity of mutual consent, can only be performed by treaty. It is, indeed, an absurdity to 
say that the power of regulating trade by law is incompatible with the power of regulat- 
ing it by treaty, since the former can by no means do what the latter alone can accomplish ; 
consequently, it is an absurdity to say that the legislative power of regulating trade is 
an exception to the power of making treaties. 

Laws are the acts of legislation of a particular nation for itself. Treaties are the acts 
of the legislation of several nations for themselves jointly and reciprocally. The legis- 
lative powers of one State can not reach the cases which depend on the joint legislation 
of two or more States. For this resort must be had to the pactitious power, or the power 
of treaty. This is another attitude of the object, displaying the fallacy of the proposi- 
tion that the legislative powers of Congress are exceptions to or limitations of the power 
of the President, with the aid of the Senate, to make treaties. 

SUPEEIOBITY OF TEEATIES OVER STATE LAWS. 

There is no doubt that in the absence of a treaty or legislation by Congress 
the States have power to establish the status of foreign citizens as to their rights 
to hold and inherit property, and to engage in business within their several 
borders. And Congress undoubtedly has the power to provide for the natural- 
ization of foreign subjects and prescribe conditions under which they shall be- 
come citizens of the United States. Notwithstanding this, it is settled beyond 
dispute that the Federal Government may, by treaty, define the status of a 
foreign subject residing within the States, and indicate the plans where he may 
travel, the business in which he may engage, the property he may own, both real 
and personal, and the disposition of such property upon his death ; that such 
a treaty constitutes the supreme law of the land ; that a State law contravening 
such a treaty is invalid and will be so declared by the courts in a suitable 
action. Certain it is that Congress may pass a law setting aside such a treaty, 
and that a treaty may be negotiated which shall supersede a law of Congress. 

These propositions have been established by the laws of all civilized nations, 
by the history of all eras, by the opinion of statesmen who framed our Consti- 
tution, by the provisions of the Constitution, by the universal practice of negoti- 
ating such treaties, and finally by repeated decisions of the Supreme Court of 
the United States and many of the State courts during a period exceeding 100 
years. 

If the President and the Senate can make a treaty providing for the disposi- 
tion of land in a State, they may make a treaty affecting foreign commerce, 
continually conceding the power of Congi-ess to denounce the treaty. 

Under the Articles of Confederation the Congress entered into treaties with 
foreign Governments defining the status of foreign citizens within the several 
States, and their right to engage in business, and to own, dispose of, and in- 
herit property, both real and personal. Such treaties were made with France, 
the Netherlands, Sweden, Great Britain, Morocco, and Prussia. (Treaty with 
France, Feb. 6, 1778, 8 U. S. Stat. L., 12; treaty with the State's General of 



TREATY BETWEEN THE UNITED STATES AND FRANCE. 31 

United Netherlands, Oct. 28, 1782, 8 U. S. Stat. L., 32; treaty of peace with 
Great Britain, Nov. 30, 1782, 8 U. S'. Stat. L., 54 ; treaty with Sweden, Apr. 3, 
1783, S U. S. Stat. L., 60 ; treaty with Prussia, September, 1785, 8 U. S. Stat. 
L., 84; treaty with Morocco, Jan. 7, 1787, 8 U. S. Stat. L., 100.) 

Since the adoption of tlie Constitution iirnny treaties of this character have 
been made, sucli as the treaty witli the Republic of Salvador in 1870 (Treaties 
and Conventions, p. 1537) ; the treaty with Peru, 1871 (Treaties and Conven- 
tions, p. 1431). In fact, nearly every one of our treaties contain provisions, 
varying in form, regulating some matter which is ordinarily within the juris- 
diction of the State, and which, by the Constitution, is not committed to Con- 
gress other than by the treaty-making power. 

That such treaties are valid and superior to the laws of the States is dem- 
onstrated by the discussions which occurred at the time the Constitution was 
■adopted. 

Time does not permit me to cite the expressions of the public men of that 
time, of Washington, Jefferson, Hamilton, Madison, Randolph, Pinckney, Adams, 
Wilson, together with the remarkable discussion of the Constitution by Hamil- 
ton, Madison, and Jay in the Federalist — a discussion which excited the admira- 
tion of statesmen the world over and compares favorably with the writings of 
such :great students of government as Vattel, Montesquieu, Burke, Machiavelli, 
iind Rousseau. 

It is only necessary for me to cite to the Senate the various decisions of the 
Supreme Court of the United States, holding that these treaties were not only 
within the treaty-making power of the Senate and the President, but were 
superior to the laws of the various States. 

Many of these decisions were rendered in the early days of the Republic, were 
participated in by men who were members of the Constitutional Convention and 
familiar with the history of the times and the objects to be attained by its 
adoption. I shall simply give the Senate a list of the leading cases, as follows : 
Elizabeth Rutgers v. Joshua Waddington, in the Mayor's Court of Nw York, 
1784; Ware ^?. Hylton (3 DalL, 199) ; Chirac v. Chirac (2 Wheat, 259) ; Orr v. 
Hodgson (4 Wheat., 453) ; Fairfax's Devisee v. Hunter's Lessee (7 Cr., 603) ; 
Hughes V. Edwards (9 Wheat., 489) ; Hauenstein v. Lynham (100 U .S., 483) ; 
Geofroy v. Riggs (133 U. S., 263). 

There have also been adjudicated cases to the same effect in the United 
States circuit and district courts, and a large number of cases in the State 
courts. In fact, every State which has passed on the question has followed the 
decision of the Supreme Court of the United States. 

This is also the opinion of substantially all of the w^riters upon the treaty- 
making power, with one exception — Henry St. George Tucker, of Virginia — and 
he bases his opinion very largely upon certain expressions contained in certain 
decisions of the Supreme Court of the United States, notably in opinions ren- 
dered by Chief Justice Taney, in 1840, in Homes v. Jennison (14 Pet., 540) ; of 
Justice Daniel, shortly after, in the License cases (5 How., 504) ; and Chief 
Justice Taney and Justice Grier in the Passenger cases (7 How., 283), tending 
to support the theory that the treaty-making power does not extend to the 
subjects which by the Constitution are ordinarily committed to the relative 
jurisdiction of the States. In all of these cases there were opinions by several 
of the justices of the Court, and it does not appear that the language used was 
approved by the majority. In fact, in the Passenger cases the language of 
Chief Justice Taney was used in a dissenting opinion. These decisions, how- 
ever, do not purport to overrule the earlier decisions of the court to the 
contrary, and have never been followed by the court since that time. They were 
rendered at a time, now happily past, when the country was divided by an over- 
whelming issue which darkened the political sky and clouded the judgment of 
men. This undoubtedly had its effect upon the decisions of that great court, but 
the later decisions have dispelled whatever doubt may have existed. 

CONSTITUTIONAL EXCEPTIONS TO TEEATY-MAKING POWER. 

It may be said, however, that if there are no implied limitations to the 
treaty-making power, the President, by and with the consent of the Senate, 
might dismember the Union, abolish the structure of government guaranteed 
by the Constitution, or convey away the territory of the States. In fact, the 
Senator from Pennsylvania, in his speech on June 17, said that under the 
treaty-making power King George of England could not be made President of 
the United States, nor could the House of Lords be substituted for and perform 
the functions of the Senate of the United States, nor could the House of Com- 
mons be made to take the place of the House of Representatives. 



32 



TREATY BETWEEN THE UNITED STATES I 




■»-"iiorct^»i 



But these arguments are not new. They were advanc a «Aij-—""'"'"""iiiiiiiiiiiiifiiiiiii| 
in the constitutional convention, and in the conventioii ^^ ._ ^*^ °14 661 7 
called to consider the adoption of the Constitution. 

The same argument was advanced against the Jay treaty. In reply,] 
Hamilton said : 

The only constitutional exception to the power of making treaties is that it shall notl 
change the Constitution ; which results from this fundamental maxim, that a delegated] 
authority can not alter the constituting act, unless so expressly authorized by the con- 
stituting power. An agent can not new-model his own commission. A treaty, for ex- 
ample, can not transfer the legislative power to the executive department, nor the I 
power of this last department to the judiciary ; in other words, it can not stipulate! 
that the President, and not Congress, shall make laws for the United States — that the| 
judges, and not the President, shall command the national forces. 

Undoubtedly the treaty-making power does not comprehend that the President 
and the Senate shall change the form of Government or stipulate to destroy 
any of the fundamental powers of the Federal Government which are guaranteed 
by provisions of the Federal Constitution coordinately with the treaty clause. 

A treaty abrogating the functions of the Supreme Court of the United 
States or of the legislative oi executive bodies would undoubtedly be declared 
unconstitutional, because the provisions of the Constitution creating the de- 
partments of Government are of equal force and effect with those conferring- 
the treaty-making power. 

These questions, if not settled by ballot, can only be settled by the arbitra- 
ment of war. 

This question has been settled and these limitations carefully defined by 
the Supreme Court of the United States in the case of Geofroy v, Riggs (135 
U. S., 258). 

But because a treaty limits sovereign power — I speak of sovereign power 
as the power to make laws — it is not thereby invalid. The treaty-making 
power as between nations embraces many of the subjects which are within the 
legislative power of the Nation. Every treaty we negotiate to a certain extent 
destroys certain freedom of sovereign action. A treaty, of which we have 
many, conferring certain privileges of trade, is binding and, if we perform our 
agreement, it limits legislative action. Treaties fixing duties and providing 
for imports ; navigation treaties ; treaties defining the status of foreign subjects^ 
their right to own and hold property ; in fact, there is not a treaty which does 
not to some extent limit the power of the Federal Government. Of course, it is 
conceded that Congress has the power to violate a treaty, and we have de- 
nounced some of our treaties. And the Supreme Court has decided that a 
treaty can not alter the Constitution and is void if it is in violation of that 
instrument. (Thomas v. Gay, 169 U. S., 264.) 

But it is an entirely different proposition when Congress agrees to a treaty the 
may cause war. The violation of many of our treaties might cause war if the- 
other party to the treaty so desired. Congress has no power, of course, to create 
a supergovernment and confer upon that government the right, without an act 
of Congress, to declare war. 

But it is an entirely different propostion when Congress agrees to a treaty the- 
violation of which may lead to war. By the guaranty of the political integrity 
of Panama, if we perform that guaranty, it may become necessary to render 
military service. The treaty itself, however, is valid. We can not, of course,, 
confer upon Panama the power to declare war for the United States, but we can 
agree with Panama to perform acts which may involve us in war. 

It is claimed that we can not enter into a treaty limiting armament, because 
Congress alone can raise and support armies and provide for a navy. By a 
treaty with Great Britain, negotiated in 1817, we agreed to limit armament oa 
the Great Lakes. This treaty has been in existence more than 100 years, and no' 
question has ever arisen as to its validity. If we may limit armament in a cer- 
tain section we may limit it entirely. Whether it is advisable to do so is an- 
other question. It must also be remembered that we have negotiated a large- 
number of treaties within the last 10 years, by which we agi'ee to arbitration 
and to forego hostilities for periods of from three to six months. These ai"e- 
agreements not to make war. If the contention of certain Senators is correct 
that a treaty in which it is agreed to forego hostilities is void because the Con- 
gress has absolute power to declare war at any time, we have for many years 
been performing unconstitutional acts. In fact, any treaty would be void Avhich 
Congress may violate by legislative act or which requires a legislative act be- 
fore it becomes operative. * * * 

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